Should I wait until after my divorce to change my Will?

**This article was edited on 27 July 2023 to reflect that the amount of the statutory legacy increased **

The short answer is no; you must act sooner than this. It may be important to create a Will or amend an existing Will to ensure you protect your interests. Do not wait until you obtain a decree absolute.

If you do not have a Will, strict rules apply to the division of your estate

If you die without a valid Will, then your estate passes in accordance with the strict rules of intestacy. If you do not have a Will and are married, the first £322,000 and all of your personal belongings passes to your surviving spouse, or civil partner, and any remaining assets over £322,000 would then be divided with fifty percent passing to your spouse and the remaining fifty percent passing to your children in equal shares. If you have no children then the whole estate would pass to your spouse or civil partner.

A couple remain spouses until the Decree Absolute is obtained

Until such time as a Decree Absolute or a final order dissolving the Civil Partnership is obtained, a couple remain spouses and in the event that somebody dies without a Will, even during divorce or dissolution proceedings, the rules of intestacy would still apply. Similarly, assets which are held ‘in trust’ such as pensions and life insurance policies will continue to determine the couple as married, with regards to who should be classed as the beneficiary of the fund, until the union has been formally ended by order of the Court.

Inform any pension fund or life insurers of your separation

You should always inform your pension fund or life insurance policy provider of your separation and a Letter of Wishes or form of nomination should be provided to the Trustees of the fund which confirms who, in the place of a surviving spouse, should be regarded as a beneficiary of the fund.  There is no guarantee that the Trustees will have the discretion to pay out to anybody other than a spouse, whilst a couple is still married, but this course of action is advisable in any event.

Setting out reasoning behind your new or revised Will can reduce the risk of future claims

Whilst the creation of a Will may prevent your estate passing to your estranged spouse, the law stipulates that certain groups of people, such as spouses and those who were financially dependent upon the deceased, who have been omitted from a Will can bring a claim against an estate. You can mitigate the risk of a claim by creating of a statement which sets out clearly the reasons why you are not making provision in your Will for your estranged spouse.  This statement would be produced if the Court had to consider any claim against your estate.

Seek professional advice as soon as possible

As we have explained, the creation or amending of a Will immediately post-separation and prior to obtaining a Decree Absolute is incredibly important. You should seek professional advice on this aspect as soon as possible so that you can determine what is at stake and how best to address it. Specialist Family and Private Client lawyers can also advise you on issues such as survivorship which affect jointly owned assets, such as property and joint bank accounts, and how these assets can be protected until a financial settlement is reached and the divorce finalised.

Revisit your Will arrangements once your Financial Settlement is finalised

Any Will created during divorce or separation should be revisited as soon as your financial settlement is finalised to ensure that the Will still meets your needs once the Decree Absolute or final order dissolving your Civil Partnership.  If you remarry in the future then a new Will would have to be made as marriage revokes or makes invalid any Will which was not made in contemplation of marriage and specifies such on the face of the document.

Do not procrastinate, too much is at stake. Our specialist Family Lawyers are happy to talk with you and guide you on how best to ensure your interests are best protected upon separation and during divorce proceedings.