When a couple separate, updating a will is not always at the top of the priority list. Understandably, attention is usually focused on the divorce itself, arrangements for children and the financial settlement. However, a separation can have a significant impact on how an estate passes on death. For that reason, will planning for divorcing clients should be considered at an early stage rather than being left until the divorce is final.
What Happens on Separation?
A common misconception is that separating from a spouse prevents them from inheriting. This is not the case.
Until the court makes a final order of divorce, the parties remain legally married. If one spouse dies without a valid will, the surviving spouse may inherit under the intestacy rules. Their entitlement will depend on whether the deceased left children and the value of the estate.
Any gift to the spouse in an existing will also remains valid while the divorce is ongoing subject to the exact terms of the will..
A new will can address this risk without waiting for the divorce to be completed.
Will Planning for Divorcing: What Happens to a Will After Divorce?
Under section 18A of the Wills Act 1837, once the divorce is final, the former spouse is generally treated as having died on the date of the final order for the purposes of the will.
This will mean that:
- any gift to the former spouse will fail;
- the former spouse will not act as an executor or trustee; and
- any substitute gifts or appointments included in the will take effect.
The precise wording of the will should always be checked. A will can expressly provide that a gift or appointment will continue despite divorce.
Divorce does not revoke the whole will. The remaining terms continue to apply and may operate in a way that the testator did not intend.
For example, James leaves his estate to his wife, Helen, and following this to his and Helen’s children in equal shares. Following their divorce, the gift to Helen will usually fail. If James does not update his will, some of his estate will pass to Helen’s children despite the divorce.
Will Planning for Divorcing Clients: Making a New Will
A person can make a new will at any stage of the divorce process. An interim will may be particularly important where there are children, a new partner, business interests or significant assets.
Reserve beneficiaries are highly advisable. If the proposed beneficiaries predecease, having reserves will offer protection against the spouse inheriting under intestacy.
Jointly Owned Property and Other Assets
Reviewing how assets are owned is an important part of will planning for divorcing clients, as a will does not always control what happens to every asset on death.
Where a property is owned as joint tenants, it will pass automatically to the surviving joint owner by survivorship. This applies regardless of the terms of the deceased owner’s will.
A separating owner may therefore consider severing the joint tenancy. The owners would then hold the property as tenants in common, with each owning a separate share. Each owner’s share can pass under their will.
A joint tenancy may be severed by mutual agreement. This is often preferable where both spouses accept that the survivorship arrangement should end.
However, the consent of the other joint owner is not essential. Under section 36(2) of the Law of Property Act 1925, one joint tenant may sever the beneficial joint tenancy by serving written notice on the other.
Unilateral severance may be appropriate where cooperation is unlikely. It should not be carried out without considering the wider divorce.
Pension death benefits, life assurance policies and workplace benefits may also pass under nomination forms, trusts or scheme rules rather than under the will. Any existing nominations should therefore be reviewed.
Claims Under the Inheritance (Provision for Family and Dependants) Act 1975
Changing a will does not necessarily prevent a spouse or former spouse from bringing a claim against the estate under the Inheritance (Provision for Family and Dependants) Act 1975.
If the person dies before the divorce is final, the surviving spouse may apply for reasonable financial provision. A spouse’s claim is not restricted to the amount required for their maintenance.
After the divorce, a former spouse who has not remarried may still be entitled to bring a claim. Any award will be limited to the amount required for their maintenance.
However, under section 15 of the 1975 Act, the court granting the divorce or making a financial order may direct that either party is barred from making a future application against the other’s estate. The divorce and financial orders should therefore be checked before assessing whether a former spouse may bring a claim.
A carefully drafted will and a written explanation of the decisions made may assist if a claim arises. They cannot, however, prevent an eligible person from making an application.
Inheritance Tax
Transfers between spouses are generally exempt from inheritance tax, this includes if they are separated but not yet divorced.
Once the divorce is final, the spouse exemption will no longer apply to transfers between the former spouses.
Lasting Powers of Attorney
Divorce planning should also include a review of any Lasting Powers of Attorney.
Divorce will generally bring a former spouse’s appointment as an attorney to an end unless the LPA provides otherwise. Separation alone will not end the appointment.
A new LPA may therefore be required.
Conclusion
Reviewing a will should form part of the wider planning that takes place during a divorce. Particular attention should be given to beneficiaries, executors, guardians, jointly owned property and any related estate planning arrangements. A properly reviewed will can help ensure that the estate passes as intended both during and after the divorce process.
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This article is provided for general information only and does not constitute legal advice. Any advice, wording or clauses referred to are illustrative and should not be relied upon as precedent without full consideration of the client’s circumstances, the will as a whole, and the law in force at the relevant time.
