Separation is a different time, which can have several legal consequences. Marital breakdown is the time to consider the future and in particular who you wish to inherit your estate.
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But I already have a Will
If you are still married then separation has no effect on your Will. Almost certainly your Will refers to your husband or wife (spouse) in some way. Many couples have Wills that leave everything to each other. If you no longer wish your spouse to inherit, you must make a new Will immediately which confirms your new wishes.
What if I destroy my Will or I don’t have one?
If you don’t have a will, you should definitely get one. And if you are still married, then just destroying your current will is not going to help.
Why? If you dies Intestate (without a Will) the Intestacy rules will direct your assets in a set way. If you are married with children your spouse will inherit all your persona; effects and at least the first £125,000 of your remaining assets (including your home). If your estate exceeds the this amount your children will take half and your spouse will have an interest in the other half. You must make a new Will to change this.
I own property jointly with my spouse
Normally on death any joint assets pass automatically to the surviving joint owner irrespective of the terms of any Will you have signed. Therefore even if you has signed a New Will your house could still go to your spouse. This can easily be avoided by ‘Severing the Joint Tenancy’. Once the joint tenancy is severed you can leave your share of the house to the beneficiaries named in your Will. Other joint assets as bank accounts can also be severed.
Click here to find out more about the differences between joint tenancy and tenancy in common
Issuing Divorce Petition
You are not legally divorced until the decree absolute has been issued. Therefore pending decree absolute, your spouse is still entitled to any gift under your existing Will and will be the main beneficiary under the intestacy rules if you die without a Will.
I’m divorced, what should I do now?
Once you are divorced your Will is treated as though any reference to your former spouse is omitted. However, you still have the welfare of your children and any new family to consider.
- Do you want to chose Guardians for your children if you die before they reach 18 years of age?
- Do you want your children to inherit at 18 years or when they are older?
- Do you have a new family to consider? They will not inherit anything from you unless you make a new Will specifically including them.
- Do you want to choose Executors to deal with your estate on your death?
- Do you want friends or charities to benefit from your Will?
Approximately 70% of people are without a valid will, making it highly likely that their property will not pass as they would have wished if they should die. It’s also raises the possibility of their loved ones battling over a contested will. If you’re going through a relationship breakdown, make sure that you speak to your Divorce Solicitor about making a will or updating your existing Will.
Our specialist family law and private client teams based at our offices in Salisbury, Fordingbridge, Andover and Amesbury can help you through the legal maze.
Click here to read more about making or updating your will