Sarah Orrell, senior solicitor at Leonard Gray LLP, explains why updating your will is crucial after, or even during, a separation or divorce.

If you’ve just been through, or are going through, a marriage or relationship breakdown, making a new will is probably the last thing on your mind. But as your existing will is unlikely to be appropriate to your new circumstances, it’s worth addressing this sooner, rather than later.

If you're separated

Separation can take many forms, whether it’s one spouse walking out on the other, or a mutual decision. The difficulties of going through this life change, and all of the upheaval that it entails, may mean that updating a will is low on your priority list. But it’s important to be aware that no matter how bad your relationship, from a legal stance, you are still legally married, so nothing has changed where your will is concerned. 

Because a separation has no effect on a will, your spouse could still inherit under your will, no matter how long you have been apart. So a fresh will that reflects your new situation should be considered.

If you have no will, your spouse would still inherit from you under the intestacy rules, and your estate would pass to them in the absence of a will. How the intestacy rules would affect you depend on your own family circumstances, but here are two examples:

• If you are married without children, all of your estate and personal chattels will pass to your spouse.
• If you are married with children, the first £250,000 of your estate, and all of your personal chattels, will pass immediately to your spouse. The rest of your estate will be divided into 2 equal parts. One half will for your spouse, and the other half will be held for your children in equal shares, until they are 18.

If you are in a relationship after parting from your spouse, consider making a will that provides for your new responsibilities; a partner to whom you are not married can’t inherit from you, unless you make a will providing for them. Without this provision, they may need to go to court to get provision from your estate.

If you're divorced

If you have received the final papers (decree absolute), financial matters have probably been settled between you and your former spouse. Regarding your estate, matters can still be complicated, though, and need careful consideration.

If you made a will before your divorce, this will is still valid, and this creates a number of problems. 

Many married couples appoint each other as the executors and beneficiaries of a will, either alone, or to share with the children. Divorce has the effect of removing the former spouse from the will completely, while the appointment of other executors and beneficiaries remain valid.

If the former spouse was given the larger part, or indeed all, of the estate, and no substitute provisions are made in the will for their absence, then this means that after divorce there is no one to inherit this property. In this instance, the intestacy rules will apply to the assets remaining. Here's how it would work in the following scenarios:

A divorcee with children: the estate would go to their children. However, should that divorced person and his or her children die together, for example in a car accident, then the estate would go to the divorced person’s parents or, if they are not alive, brothers and sisters (or their children) of the divorced person. If the divorced person was an only child, or has no parents, siblings, nieces or nephews surviving them, then it would be grandparents or aunts and uncles (or their children) who would be entitled. This is unlikely to be what you would want, so making an up-to-date will provides for this scenario.

A divorcee without children: the estate would go to their parents or brothers or sisters. This may suit you, but if you have a new partner, and perhaps a new family, they may not be properly provided for. Updating your will ensures that your changed circumstances are accounted for.

Making provision for your children

As beneficiaries: your own children can always inherit from you, but stepchildren and an unmarried partner's children can only inherit from you if you adopt them, or if you make a will that mentions them.

Guardianship: if you have separated or divorced, it may be particularly important for you to appoint a guardian in the event of your death. Both parents should ensure that there is someone to take care of their children in their place. Usually, the appointment of a guardian won’t take effect where there is a surviving parent, but where following divorce proceedings a residence order has been made in favour of the parent appointing the guardian, the appointment will take effect on that parent's death.

Whatever your circumstances, don’t let reviewing your will as soon as you have separated, or making a will if you don’t have one, slip down your priority list.

About the author

Sarah Orrell is a senior solicitor at Leonard Gray solicitors. She specialises in all areas of family law, including divorce, separation, financial settlements, pre- and post-nuptial agreements and cohabitation disputes.