Divorce Day: Protecting Your Will and Estate During Separation

Thinking about a divorce?

Monday, 6th January 2025, is ‘Divorce Day’, the day in the year when many people decide to end their marriages. If you are one of these people, or are just thinking about it at this stage, please read on. It is important that, if you have a Will, you change it. Equally, if you do not have one, now might be a good time to create your first.

What effect does a divorce have on someone’s Will?

Once you are divorced, your Will is reinterpreted so that your soon-to-be ex-spouse is treated as having died. So, let’s say, for example, that you have a Will that leaves everything to your spouse, but also states that in the event that your spouse predeceases you, then everything is divided equally between your children. In the event that you subsequently divorce, your former spouse will be treated as having died on the date that your divorce was finalised, meaning that your entire estate will be divided between your children, assuming that they have survived you. However, if you were to die whilst your divorce proceedings were ongoing, that person whom you no longer wish to be married to is still treated as your spouse and inherits everything. If you are commencing divorce proceedings, amend your existing Will or create your first one as a matter of urgency to avoid this happening.

Can your Will be contested?

Even if you amend your Will to exclude your soon-to-be ex-spouse, they could still challenge your Will. It is possible for them to challenge it on the grounds that it does not include reasonable financial provision for them. This could result in a court order for things such as periodical payments, a lump sum, or the transfer or settlement of property.

What would the Courts take into consideration if your Will is contested?

Courts will take into consideration the personal circumstances of the deceased and their widow or widower, such as the length of the marriage, the delay from separation occurring to divorce, the surviving spouse’s outgoings, and the general financial contributions that each party had made to the marriage. Physical and mental disabilities will also be considered.

Generally, if you and your spouse have children under the age of 18, then your surviving spouse’s need to have the funds to raise those children will be given a high priority. If your spouse has sacrificed their career to raise your children, by going part-time or giving up work altogether, then that will definitely help them to make a successful claim against your Estate.

A number of factors will be impacted by age. The income and future earning capacity will be greater for a younger couple and less so for an older one. If you are getting a divorce later in life, then pension considerations will be particularly relevant. The courts will consider marital acquest, which often refers to the increase in the value of assets owned during the course of the relationship. This will, of course, be a greater factor where the deceased and their surviving spouse are older. A claim against the Estate of someone who the claimant had been married to for over 25 years will be greater than a claim arising from a marriage of fewer than 5 years, something that is more likely to affect you and your spouse if you are both older.

What can I do to ensure that my wishes are carried out should I die during divorce proceedings?

You may well be wondering if there is any way to get around this so that your estate doesn’t fall into the wrong hands. When the court decides whether or not to grant such an order, they will consider the deceased’s reasons for having excluded their ex- or soon-to-be ex-spouse. But for them to consider this, you have to have made your reasoning clear. Although you could try to make your reasons clear, it is important that this has been done in a way that the courts would accept. This is why you should book an appointment with a Wills solicitor.

If any of this resonates with you and you are considering creating your first Will or updating your existing one, please telephone or email our Inheritance Protection team on 0800 413 463 or IPT@biscoes-law.co.uk