Separation and Divorce: how does it affect your Will

by Aug 1, 2018Blog

Have you recently divorced or going through a divorce? Do you know how separation and divorce affects your Will?

If you had a Will in place prior to your separation and divorce, this will remain valid……

The time between separating from your spouse, deciding that you want a divorce and actually receiving your decree absolute/dissolution, is the most exposed time period where your estate is at risk.

According to research, the average time it takes for an ‘amicable’ divorce to be finalised is between 14-20 weeks.  I am going to emphasize the word ‘amicable’ as I think that there is only a handful of divorces that are amicable so the likelihood is it would take even longer.

Would you want your ex-spouse to benefit from your estate on death? 

If you have a valid Will with your soon to be ex-spouse as a beneficiary or executor, then the provisions of that Will are still valid until you receive your court order ending your marriage.  If the worst does happen and you die, then your soon to be ex-spouse will receive all or part of your estate as per your Will.

An additional problem is the family home.  We know that it is not always possible to sort out a jointly owned family home prior to your court order being granted – sometimes it takes longer than expected to sell or the spouse remaining in the property might not be able to sort out a re-mortgage in time.

If this property is held as ‘joint tenants’ then the automatic right of survivorship applies which means that when one owner dies the survivor automatically receives ownership of the entire property, regardless of your Will.  So, imagine if you die before your divorce is finalised and the family home is still jointly owned……. your ex-spouse may receive the whole property regardless of your impending divorce.

Slightly better news when you actually receive your divorce……. any gifts or appointments of your ex-spouse will fail. 

It will be treated as though your ex-spouse had died on the date of your court order.  This means that if you have left anything to your ex-spouse under your Will, this gift will not take effect.  In addition, if you have appointed your ex-spouse as an executor and trustee of your Will, the appointment will fail and you would need to rely on any remaining appointed executors – if you only named your ex-spouse then the court would have to appoint an executor to deal with your estate.

You might be thinking that it will be fine because you wouldn’t want your ex-spouse to act as your executor and you wouldn’t want them to receive anything from your estate anyway.  However, you need to think about where you would want your estate to go.

In our experience, most married couples leave their entire estates to each other (unless advised otherwise) and if there is not default beneficiaries named in your Will the laws of intestacy applies.

So, would you like your estate to pass to your parents, siblings, grandparents, aunts & uncles automatically OR would you like for it to pass to friends, charity, maybe even your new partner?

Here are some scenarios to show how separation and divorce can affect your Will: 

Scenario 1 – Mr & Mrs White:

  • Mr & Mrs White were married with 3 children.
  • They separated 18 months ago, Mr White has now met someone else and Mr White would now like a divorce.
  • Mr & Mrs White’s Will state that they appoint each other as executors and leave their entire estate to each other, and then on to their 3 children equally.
  • Mr White dies before divorce proceedings are issued.

 What will happen……. 

  • Both Wills remain valid.
  • Mrs White will remain as executor for her husband’s Will – even though they have been living separate lives for 18 months.
  • Mr White’s entire estate will pass to Mrs White.
  • Mr White’s new partner, Ms Black, will receive nothing.

 Scenario 2 – Mrs Jones:·

  • Mr Jones is recently divorced from Mrs Jones and has 2 children from the marriage.
  • Mr Jones’ current Will states that he would like to appoint his wife and his sister as his executors.  Also, that his estate is to pass to his wife in full (as the Will was made prior to the children being born).
  • Mr Jones dies after his divorce is finalised but before he has made a new Will.

 What will happen……..

  • Mr Jones’ Will remains valid, however, the appointment of his ex-wife as an executor and his gift to his ex-wife will fail.  It will be treated as though his ex-wife had died on the date of the court order.
  • Mr Jones’ sister will need to act as sole executor now.
  • Whilst the Will remains valid, there is a partial intestacy here as there is no ‘backup’ for the gift to his ex-wife.  Therefore, the distribution of his estate will be governed by the laws of intestacy.

Are you unsure about making your own Will?  Would you like some professional advice?

If you are putting off writing your Will because you are unsure of how to go about it or can’t decide on the fine detail, then there is no need to worry.  To provide you with peace of mind, you can discuss your situation and concerns with Trusted Law.

We will work with you to agree what is best for you both and your family.  Everything we discuss will always be private and confidential, and you will never feel rushed or pressured.

Trusted Law offers convenient appointments in the comfort of your own home – including evenings and weekends!  So it couldn’t be easier…..

To make your appointment, or for an informal chat, please feel free to contact us on

Tel:                      01953 711950 / 01603 339055

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Please note that this information is provided as a guide only and in accordance with the current laws as at the date of publishing.  

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