Whether you are married or not, it is always a tough time when a relationship breaks down. Many decisions have to be made as you separate your lives again.
Unfortunately, one of the things that most separating couples overlook is their Wills.
Yet the consequences of not having an up-to-date Will can be drastic.
This is an area of law where married and unmarried couples are treated very differently.
Divorce And Wills
For married couples (including those in a civil partnership) who get divorced, the final order or decree absolute cancels any reference to one spouse in the other spouse’s Will.
From a legal standpoint, the ex-spouse is treated as having died. The rest of the Will still stands.
However, there are two serious risks for a married couple before they get divorced.
Firstly, the rule above only applies when the court issues the final order or decree absolute, which can be many months or even years after filing for divorce.
Until then, if one spouse dies, the other spouse still inherits under the Will.
Secondly, most married couples own property as “joint tenants”.
This means that if one spouse dies, the other automatically inherits the whole property, even if the Will says something different.
This can be stopped by serving a formal “notice of severance” on the other spouse, which is then registered on your Deeds.
That converts the ownership to "tenants in common, " meaning you have a different share, and your new Will decides who inherits that share. If that severance is not done, your ex-spouse could inherit the whole property regardless of your wishes and regardless of a new Will.
Separation And Wills
For an unmarried couple, the position can be far worse.
As there are no divorce proceedings, there is no rule that cancels one partner from the other partner’s Will.
If someone leaves their estate to their unmarried partner in their Will but then the relationship ends, that Will still stands.
Unless a new Will is made, an ex-partner could still inherit decades after the relationship ended.
In all cases, if a Will still stands but your family feel that is the wrong outcome, the only way for them to challenge that is to bring costly and risky legal proceedings.
Relationship Breakdown: Updating Your Will
What is my advice as an expert in Wills?
It's simple. Whether you are married or not, making a new Will and getting advice on property ownership must be your first priority if your relationship breaks down.
Even if you are unsure what you will have to leave or whom to leave it to, we can prepare a simple Will to prevent your ex from inheriting whilst you gather your thoughts and work out finances.
If you have recently separated and need to make a Will, or if you wish to review the Will you already have, why not book a free initial appointment with Stephen Sampson or Jess Riseborough?
Alternatively, you can get in touch with Monan Gozzett using the details below.