Protecting your assets in a divorce

When facing a marital 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 assets that you would no longer wish for your spouse** to benefit from. As a result of your marriage, you may own property together where on death, your spouse would receive your share automatically. Alternatively, you may have a wealth of investments, which you had earmarked for your children, only to find 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 so to pass the proceeds directly to your children.

Why is it important to write a will?

Essentially, a Will that provides for your spouse to benefit from your death is valid until the Final Order is granted on the divorce. Therefore, if you die during the divorce process and before the Final Order is made, your spouse will continue to benefit from your estate under the terms of your Will irrespective of the instigation of divorce proceedings.

In the event you do not have a Will, your spouse will be regarded as such for the purposes of intestacy (when a person dies without having made a Will). As a spouse, they can also choose to bring a claim against your estate under the Inheritance Act (Provision for Family and Dependants) Act 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, for example, your children or maybe to a new partner. We would consider with you how your assets currently pass and establish a course of action so to ensure your estate passes in accordance with your new wishes and adapted to your circumstances.

Similarly, when the Final Order in the divorce and Final Financial Order is received, 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.

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 so to remove them from any involvement within your affairs.

Once the divorce is finalised, the possible automatic revocation of your spouse as your attorney may affect the LPA in its entirety if that appointment was on a sole appointment (and thus revokes the LPA entirely) or your spouse was appointed on a “joint” basis, which again may revoke the entire document.

It is important to take advice during divorce proceedings so to ensure your new circumstances and wishes are adequately reflected within your Will and LPA.

What assets are considered in a divorce?

A variety of things can be considered financial assets in England and Wales, so 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

Are assets split 50/50 in a divorce?

Generally, in England and Wales, the law provides that assets will, as a starting point, be split 50/50. However, in some cases one marital 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. As mentioned above, this is why it is important to hire a legal professional who can help you draft up a new one that excludes your partner from the will if that is what you wish.

Can a divorced spouse contest a 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 before or during a marital break-up, our specialist solicitors are here to help. We have offices in London, Southampton, Richmond, Lymington, Woking and Guildford and offer specialist family law support to clients nationwide.

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.

Contact our solicitors

*reference also includes dissolution of civil partnership and same-sex marriages.
**reference includes spouse or civil partners