• Kylie Simmonds-Cox

The unexpected effect of marriage and divorce on wills

Ok, so you've written your Will, you've got it stored someone safe and sound and you might now have a tendency to think "at least that's out the way, I can forget about it now", however, making your Will is just the first step. Keeping your Will under review is just as important as making a Will in the first place. None of us know what the future might hold, and our personal and financial circumstances can change over the course of time. These changes could be as significant as the birth of a child or grandchild, a move to a new home and it could even be a change in your marital status. There are two particular occasions which can have a, sometimes unexpected, effect on Wills, these are marriage and divorce.


Marriage

Many people will not realise that the general rule is that marriage automatically revokes (i.e. cancels) any Will made by either party before their marriage. If a new Will is not made after you marry, then your estate will be distributed in accordance with the rules of intestacy, which believe it or not, may not benefit your new spouse entirely and they may not be entitled to inherit everything.


If you are engaged and intend to marry in the near future, then a special clause can be included within your Will, which specifically states that your Will is not to be revoked when you marry.


Another exception to the general rule would be in the case where a marriage is treated as being void and so it is deemed as though it never took place. In this situation your Will would remain valid.


Foreign wills

The laws stated above apply to the legal jurisdiction of England and Wales. Laws regarding foreign wills can vary from country to country. Therefore, if you have a Will abroad which deals with assets in that country, then it would be advisable to check with a local lawyer in that country as to the effect of a marriage on the foreign will.

Divorce

The situation is different in the case of divorce. If a person gets divorced, i.e. once the decree absolute is granted, then any Will they have already made is not automatically revoked by the divorce. However, the effect of the divorce does change the way the former spouse is treated in law.


These changes affect any gifts to the surviving spouse or the appointment of them as executors and/or trustee under the existing will. This is because in law, an ex-spouse is, on divorce, treated as having died before the deceased, so any gifts to that ex-spouse as a beneficiary fail and so does any appointment of them as executor. Although, the remainder of the Will remains perfectly valid.


However, this may not be the best outcome for you. It may be that you have only had a basic Will in place, which did not include alternative provisions in the event of your former spouse being unable to benefit and so this could lead to an intestacy situation, which again would mean that the law would decide who would benefit from your estate. It could also mean that because your former spouse can no longer act as executor and/or trustee, then finalising your estate would automatically fall to your next of kin, who may not be willing or able to deal with such things and could well be someone you would not have chosen.


It may also be the case that your divorce is amicable and you would want your former spouse included, and in which case you would need to ensure that any Will you draft during your divorce proceedings is made in contemplation of that divorce and the appointment of your former spouse and any gift to them is to stand.


Jointly Owned Property

When property is owned jointly with another, then this could fall under the survivorship rules, which would mean that the surviving owner would benefit from the property automatically following the death of the other owner. Clearly, in a divorce situation, this may not be the desired outcome and so it might be sensible to sever the ownership, so that you can choose who you would want to benefit, rather than the property automatically passing to your estranged spouse.


Should I make a will before or after marriage and divorce?

Weddings are more often than not a planned event and so although thinking about your Will within your wedding plans doesn't seem important, it is sensible to factor in a will update before or as soon after the big day as possible. Also, when you consider most couples get married at a weekend and may then jet off on their honeymoon soon after their wedding, this leaves little or no time to go and see their Will Writer about their will.


The same applies to a divorcee. You should review your current will on divorce as you may still want your former spouse to be an executor or trustee of any trust in their will (or arising on their death), for the benefit of any children they have together.


Please note, that all of these principles also apply to civil partnerships.

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