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Divorce on Wills

There are a number of things to consider upon a divorce, especially if you have family to consider.  A major consideration are where your assets and property should go.  Additionally, you may have to think further about legal guardians and protection of children or relatives.  All of these things can be done using your Will and it is wise to attend to this as soon as you can.

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Divorce does not revoke a Will

What you should know is that divorce doesn't revoke a Will, nor does it mean a Will from before you were married comes back into effect. Your current Will remains valid, but for inheritance purposes, your ex-partner is treated as if they had died when your marriage or civil partnership was dissolved.  So, when you divorce a partner, your will remains valid, but your ex-spouse will no longer be able to benefit from it. This means that any assets left to them will be passed on to the next detailed beneficiary, or your inheritance will be dealt with as if you died intestate.

Seperation does not revoke a Will

A separation, even a legal one, has no effect on a Will, your spouse could still inherit under your Will, no matter how long you have been apart. So it would be wise to make a fresh Will and keep it updated to suit your changing circumstances

Can I appoint my own legal guardians?

You have the ability to appoint a Guardian for your children though your Will. Guardians will be responsible for raising your children and you should appoint one in a legally binding manner rather than leaving that to the Courts.  As soon as a child is born, parents should create or update their Will to appoint a guardian. You may choose to have more than one guardian, but make sure the people you choose will agree on what is best for your child.

If you divorce, your Will is still valid, so if you have appointed a guardian within it, that appointment still stands. However, if you remarry, your will is revoked so the guardianship you had chosen will no longer be applicable.  If you fail to appoint guardians in your Will and your children are orphaned before they reach 18, the courts will appoint guardians instead, but they won't necessarily choose the people that you would have preferred to take care of your children.  Most parents prefer to appoint two people (usually a couple) as guardians for their child, however, you can choose up to four people. The more people you choose, the higher the likelihood of conflicts arising with regards to differences in opinion about the child's care.

Can an ex-spouse claim on my inheritance?

Can my ex spouse claim on my inheritance after divorce?  Briefly, yes. A common misconception is that once you divorce, you are no longer able to bring an inheritance claim against your ex's estate when they die. However, a divorcee remains eligible to bring an inheritance claim against their ex spouse's estate, provided they have not remarried.  There may of course be express terms that were agreed at the time of a divorce to be considered also.   Inheritance that has been received or may be received in the future is not automatically included when splitting assets on divorce, but, depending upon your circumstances, it can be taken into account.

Will my property bypass the Will?

A further important point to understand is the way in which you and a partner owned property as this can bypass a Will altogether.  If you own your property with someone as Joint Tenants it means that, upon death, the ownership of the property passes to the remaining owners that are alive and it does not pass under the terms of your Will.  You may like to consult us about this and whether, given your circumstances, it is best to own property as tenants in common.  This would allow a Will to leave your share to whomsoever you choose.  Please ask us about this.

Who are my next of kin?

It is also important to consider who your next of kin are, as legally, this matters.  For single people (including those who are widowed or divorced), your next of kin may be your children, or if you have no children, then your parents, or if they have died before you, then your siblings – ie your nearest living relatives.

 

Your life circumstances are unique to you.  We can look at the whole picture for you and advise accordingly.  We can look both in the shorter term and set up longer term reviews for you if it seems appropriate.  That way you can keep on top of life changes as they happen. 

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