When facing a divorce or civil partnership breakdown and an uncertain future, often the last thing that parties think about is their estate on death. However, it is important that due consideration is given to this, especially in terms of protecting financial assets that you would no longer wish for your spouse or civil partner to benefit from
As a result of your marriage, you may own property together. Upon death, your spouse or civil partner would receive your share automatically. Alternatively, you may have a wealth of investments, which you had earmarked for your children. However, you might discover that the current arrangements in place provide for them to go to your ex! It may be appropriate to re-write a death in service benefit or life insurance policy. This change would ensure the proceeds pass directly to your children.
Why is it important to update your will during a divorce?
Essentially, a will that provides for your spouse or civil partner to benefit from your death is valid until the final order is granted on the divorce. Therefore, your spouse or civil partner can continue to benefit from your estate under the terms of your will. This applies irrespective of the instigation of divorce proceedings.
In the event you do not have a will, intestacy rules will regard your spouse or civil partner as such. This applies when a person dies without having made a will. As a spouse, they can also choose to bring a claim against your estate. This claim would be under the inheritance act (provision for Family and dependants) 1975.
It is, therefore, important to draw up a new will at the point of deciding to divorce. This would help to ensure that your estate passes directly to the people you wish to inherit. We would consider with you how your financial assets currently pass. Then we would establish a course of action to ensure your estate passes in accordance with your new wishes and circumstances.
Similarly, when you receive the final order in the divorce and final financial order, it is important to carry out a more thorough review of your personal and financial circumstances. This could include making changes or additions to your will, receiving inheritance tax advice and discussing the possibility of any lifetime tax planning opportunities.
Why should you review your Lasting Powers of Attorney during divorce?
Any Lasting Powers of Attorney (“LPA”) you have made will also need consideration when pursuing divorce proceedings. If you have appointed your spouse as an attorney, then that appointment will continue until the dissolution of the marriage/civil partnership, unless there is a clause to the contrary. You may wish to revoke the appointment of your spouse or revoke the LPA entirely.
Once the divorce is finalised, the possible automatic revocation of your spouse as your attorney may affect the LPA in its entirety. This effect occurs if that appointment was on a sole one, thus revoking the LPA entirely. Alternatively, if your spouse or civil partner was appointed on a “joint” basis, which may also revoke the entire document.
It is important to seek advice during divorce proceedings. It is important to ensure that your Will and LPA adequately reflect your new circumstances and wishes.
What assets are considered in a divorce?
A variety of things can be considered financial assets in England and Wales. With enough proof that it is considered shared property, anything can be viable when separating from your partner. Among this is:
- Property
- Vehicles
- Art, technology, any other property worth money
How to ensure fair asset division in a divorce?
Generally, in England and Wales, the law provides that financial assets will, as a starting point, be split 50/50. However, in some cases one party will end up with more than the other due to a standard of living, supporting children, upkeep of a property and much more. The best thing is to hire expert legal help that can get you a fair share of assets in a separation.
Does a will still count after a divorce?
Yes. Unless you have actively revoked your will and written a new one, the old document will still stand. A legal professional can help you draft up a new one that excludes your partner from the will.
Can a divorced spouse contest your will?
If a new will has been written and officially signed off upon that excludes the divorced spouse, then the ex-partner has no right to assets after their death. However, if the existing will was never revoked or rewritten then they can still claim to any previous promises made.
How we can help you
If you would like advice on how to protect your wealth or family assets, our specialist private wealth lawyers are here to help.
For more information about the process of getting a divorce, read here.
Making a will gives protection to you and your assets, if you are thinking about making a will see here for more information on how we can help.
