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Family law: how does divorce affect your Will?

Since I began my career as a lawyer 12 years ago, I have been fortunate to have gained wide range of experience in different areas of law.  While I now practice exclusively in Family Law, it is fascinating to me just how many other areas of law interact with this.  Over the next few weeks, I will be exploring some of these interactions in a series of blogs, starting now with Wills and Probate.

One of the early discussions we as family lawyers have with our clients when they come to us following a breakdown of their marriage is whether they have a Will and if so whether that now needs to be reviewed.  But why?  Surely there is enough to think about already without adding considerations of your own mortality, you might say.  Sadly, it is a necessary consideration.

What happens to your Will after a divorce?

If you have a Will and you are married, there is a good chance that your Will benefits your spouse.  It may be that in the wake of the breakdown of your marriage, you will no longer wish for your spouse to benefit in the event of your death, in which case amendments may be required – or at least some consideration needs to be given to it so that you can make an informed decision.  Of course you may choose, as some do, to leave your Will unaltered for the time being.

Under s18A of the Wills Act 1837, if by the time you have reached the conclusion of the divorce, having been granted Decree Absolute by the Court, you still have a Will which leaves any part of your estate to your now ex-spouse, the relevant ‘bequests’ to them will no longer take effect.  Depending upon how your Will is structured, that may give rise to a ‘partial intestacy’ and so it is advisable at that final stage to review your Will again.

Intestacy rules: what happens if you divorce without a Will?

If, like 55% of the adult population of Great Britain, you do not have a Will, then on your death the ‘Intestacy Rules’ (or s46 of the Administration of Estates Act 1925 to be precise) set out how your estate will be distributed on your death.  Unsurprisingly, your spouse is the first in line, receiving some or all of your estate depending upon whether you have children.  Again, in the aftermath of a separation, you may wish to consider making a Will at that stage so that the default rules do not apply if the worst should happen.

It is also worth noting that by virtue of s18 of the Wills Act 1837, if you made a Will before you were married, unless it was specifically drafted in contemplation of your impending marriage, it would have been rendered null and void by your subsequent marriage – so you may not have a Will after all!

Although we are family law specialists, we do have many contacts who are private client lawyers with whom we work regularly and can point you in the right direction, if required.

If you require legal advice regarding matters of probate please do not hesitate to get in touch with one our specialist solicitors.

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