None of us get married expecting divorce but 50% of marriages end in divorce. In this article we are encouraging you to think about marriage and divorce when it comes to Wills.
Whether going through the excitement of planning a wedding and looking forward to getting married or the trauma -and consideration of your spouse /children- when going through a divorce, the last thing often considered is the effect either of these events have on an existing Will, the ramifications of which can be extensive.
At this point it is important to point out that laws regarding the making of Wills are different in different countries, it is therefore important that a lawyer in the appropriate country examines the Will and advises you accordingly.
MARRIAGE
In England and Wales, any Wills made before marriage or civil partnerships are automatically revoked upon marriage or civil partnership, UNLESS, when making the Will, a ‘Contemplation of Marriage or Civil Partnership’ clause – naming the individual- is inserted. This revocation takes place irrespective of how long you have lived with a partner.
In order to ensure your Will reflects your wishes at the time of your marriage or civil partnership it’s a good idea to discuss the situation with your professional Will Writer before the ceremony takes place, allowing time to make changes or write a new Will.
If – when considering the situation – you think at the outset of your marriage you don’t need a Will because you haven’t acquired much in the way of assets, it’s important to take into account the speed at which circumstances can change, and the potential for conflict around such a bereavement. A sudden inheritance due to unforeseen occurrences such as sudden Illness or tragic accidents could suddenly and unexpectedly change your situation.
Whilst death is always pending so course is life! Unplanned babies, despite best efforts, come along. Most people making a Will want to consider their children’s future security. There are so many unforeseen and unpredictable circumstances worthy of consideration. As professional Will Writers, we are able to advise you about the options to cover them all in your Will, including the use of Trusts where beneficial.
DIVORCE
Obviously divorce is not something we contemplate whilst we are happily married but having made the decision to end the marriage it’s important to consider the practicalities of the situation.
Divorce won’t fully revoke your Will but it will have a serious effect on your estate. Your ex-spouse will not be able to act as your Executor or Trustee. They will no longer be able to benefit from the Will unless you have specifically expressed that they should.
Separation is not the same as divorce because you remain legally married and the Will remains valid. If you don’t wish your spouse to inherit under the terms of the Will, you need to make a new one at this stage. You are not divorced until the decree-nisi is issued.
If you remarry and each of you have children, in order to protect and provide for them it is important to make a new Will stating clearly your wishes and naming the said children.
For the absolute avoidance of doubt, in the United Kingdom there are no such thing as common law marriages/ civil partnerships, therefore no legal rights exist in this situation – including after death!
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If you die INTESTATE – that is without a legally valid Will in place – you will have no say over the distribution of your estate. The Rules of Intestacy – Default Inheritance Laws -will apply.
Please note that the Rules of Intestacy do not recognise STEP CHILDREN and FOSTER CHILDREN if you wish them to inherit from your estate you MUST name them as Beneficiaries. Only biological and adopted children are recognised.
Please remember at Confidence Wills we have the expertise to advise and guide you through difficult and complex situations. We are here to help you. Please feel able to contact us – without obligation.