In addition to obtaining legal advice regarding the divorce process and untangling the matrimonial finances, it is also vital to consider the impact of the death of one of the parties before the divorce is finalised.
The principles stated below apply equally to a couple getting divorced and to a couple dissolving their civil partnership.
What If I Already Have A Will In Place?
Most married couples, if they have made Wills together, usually have Wills that make substantial provision for each other in first instance and often appoint each other as one of the executors.
Once the divorce is finalised your Will remains valid but your former spouse will be treated as if they died before you so they will not inherit nor be able to act as an executor. However, it can often take many months, or even years to finalise a divorce and during this period the provision for the estranged spouse will remain in place so there is a risk that the estranged spouse could inherit under a Will if one of the parties died before the divorce has been finalised.
You will see it is very important to take legal advice about updating your Will early on in the process of getting divorced.
Should I Still Make A New Will Following My Divorce Being Finalised?
As stated above, following the decree absolute being issued (the divorce being finalised) the provision for the ex-spouse is automatically removed. However, there are usually other elements of the Will that are unsatisfactory and inappropriate following the divorce.
If the Wills were made by the couple together then the terms of the Wills often reflect this joint approach through making provision for both sides of family and often appointing various relatives from both sides of the family in important roles such as executors, trustees and guardians of any children of the marriage.
Following a divorce, you should review your Will to check for any potential unwanted inclusion of relatives of your estranged spouse that remain in your Will even following your divorce.
What If I Have No Will?
If one of the divorcing parties dies without a Will in place before the divorce is finalised then the government rules; the rules of intestacy, will still apply as confirmed in the case of Stanhope v Stanhope [2013]. As such if, for example, a wife died during divorce proceedings without a Will in place then her husband would inherit under the rules of intestacy (either the entire estate or a substantial share of the estate depending on the finances involved). Any party left prejudiced by this outcome, for example adult children, would have to bring a claim under the Inheritance (Provisions for Family & Dependents) Act 1975 to claim against the estate.
Clearly, if you have no Will in place then there is a risk that your estranged spouse could inherit under the rules of intestacy if you were to die before the divorce was finalised so you should strongly consider getting a Will in place.
What About The Jointly Owned Property?
Many married couples that co-own their property together often own the property as ‘joint tenants’ and couples who are splitting up might consider changing the ownership of the property from ‘joint tenants’ to ‘tenants in common’ so that their share of the property does not automatically pass across to their soon-to-be-ex-spouse before divorce proceedings are completed.
What Is The Difference Between A Joint Tenancy & A Tenancy In Common?
A joint tenancy is when the co-owners all own the whole of the property. Therefore, if one of them dies, their share in the property automatically passes by survivorship to the surviving co-owner(s) and does not form part of their estate passing under their Will or the rules of intestacy.
A tenancy in common is when each co-owner owns a separate share in the property that forms part of their estate when they die and passes under the terms of their Will or the rules of intestacy.
It is very common for married couples to purchase their property as joint tenants so if the property remains owned as joint tenants during the divorce proceedings and, if one co-owner dies, then the property would automatically pass to the surviving spouse by survivorship.
Should I Sever The Joint Tenancy?
It is possible to sever the joint tenancy whilst divorce proceedings are ongoing to change the ownership from joint tenants to tenants in common. The process involves notifying the other co-owner that the property is now held as tenants in common. Once held as tenants in common each co-owner can leave their respective share to beneficiaries under their Will. However, careful consideration needs to be given to whether severing the joint tenancy should take place and also the practical implications of leaving a share in the property to beneficiaries such as children.
Next Steps...
If you are going through a divorce or legal separation make sure you talk to your legal advisor about making a Will and potentially severing the joint ownership of your property.
If you would like any further information regarding the issues raised in this blog, then please telephone me on 01283 561531 or e-mail me at m.kelly@timms-law.com.
