divorce and your estate

Prior to your Divorce
At this difficult time in your life the last thing you will want to consider is what will happen to your financial affairs should you die unexpectedly before a settlement has been finalised. However, we advise that you give some priority to this question, especially if you have children.

Consequences on separation, prior to a Divorce, if you have a Will
If you die unexpectedly before your divorce has been finalised the provisions of your existing Will remain legally enforceable. Now that you have separated you may wish to reconsider this gesture and appoint other executors/beneficiaries. Therefore you must replace your existing Will with a new one as soon as possible.

Consequences on separation, prior to Divorce, without a Will
If you have children and you do not have a Will, your former spouse will receive the following on your death prior to a divorce:

  • The first £250,000 of your estate;
  • All your personal chattels (incluidng your car and personal possessions); and
  • The income for life on half of your remaining assets.
  • If you do not have children and do not have a Will, your former spouse will receive the following on your death prior to a divorce;

  • The first £450,000 of your estate;
  • All your personal chattels (incluidng car and personal possessions); and
  • The income for life on half of your remaining assets.
  • If you do not wish this to happen you must make a Will immediately.

    Joint Property
    If you still own a property with your former spouse as Joint Tenants, you will need to consider whether or not to revise this arrangement.

    A Joint Tenancy means that if you die your spouse would atomatically inherit the whole of the property by way of what is termed the “Rule of Survivorship” and vice versa. If you wanted to leave your share of the property by way of a Will to anybody other than your spouse, you will need to “sever” the joint tenancy so that you could then hold the property as what are termed “tenants in common”. We can do this for you by simply serving a Notice on your spouse and the Land Registry.

    Even as a tenant in common, whilst you remain married to your spouse unless you leave a Will, your spouse will be your automatic beneficiary under the Intestacy Rules.

    After Divorce
    If you have appointed a former spouse as your Executor (the person who distributes your estate in accordance with the provisions of your Will) this appointment will lapse.

    As the appointment will lapse, this will have important legal implications as a third party will have to be appointed to deal with your estate. This may not be the person who you would want or trust to deal with your personal affairs.

    Likewise, should the gift to your former spouse lapse you must appoint another to receive your estate, otherwise the Intestacy Rules will apply. What this means is that if your exiting Will has not provided for an alternative beneficiary, your estate will pass in accordance with the strict provisions of the law only. Therefore, passing to individuals you might not wish to benefit.

    Any gift or bequest in that Will also lapses.

    To avoid uncertainty we advise you to make a new Will.

    For further information on Wills please ring Jeremy Edwards on 01326 318900 or contact Jeremy Edwards at jeremy@prestongoldburn.com

    For further help on Divorce please ring Kelly Grigg on 01326 318900 or email kelly1@prestongoldburn.com

    Disclaimer – This only provides a generic outline of the law as at 22.2.12 and does not apply to every factual situation and therefore it might not apply to your situation. You must obtain specialist legal advice on the facts of your individual case before you take any action and as a result Preston Goldburn Solicitors cannot be liable for any losses you suffer as a result of failing to obtain your own specialist legal advice.