Whilst making the decision to separate (or being served with divorce papers) has a number of other immediate concerns that may need addressing, it is vitally important for you to consider updating a Will, or making a Will, to ensure you are taking such steps as are necessary to protect yourself and your family financially if the worst should happen.

It is important to understand that whilst you remain legally married to a spouse or civil partner, despite being separated, the law still treats you as being legally married to them for succession rights until any final order ( or decree absolute if your petition was issued before April 2022) is issued.  This would mean that any current Will remains valid unless changed by you or, where no Will exists, the Intestacy provisions will stipulate what they will inherit.

Separating without a Will.

If you are married, although separated, and you died without a Will, the Intestacy Rules would stipulate how much of your estate that your spouse would inherit. This may be all, or a substantial part of, your estate dependent upon your circumstances.

They would automatically receive the £322,000 of your estate and, where you do not have any children, anything over and above this too. Where you have children, any excess over the £322,000 will be split 50% for your spouse and 50% for your children.

If you are separating it is therefore vital that you make a Will to prevent your spouse from automatically inheriting under these provisions if something were to happen to you prior to the conclusion of your divorce proceedings.

The effect on existing Wills

If your spouse was a benefactor of an existing Will, we would advise that you should seek to update your Will if you no longer wish your spouse to still substantively benefit from your estate. This risk is only removed following the divorce being fully concluded.

With a Will, you can specify who you would like to benefit from your estate and make provision for any children. This may still include an ex spouse, but crucially the decision will be yours.

Unknown financial position

At the outset of a separation the financial landscape may be uncertain and only following agreements being reached may the extent of your estate be determined but we would always recommend writing a Will at the outset of a separation as this can always be amended at the end of the process.

What about Joint Assets & Pensions?

Joint assets will normally pass to a co-owner on death regardless of what is written in a Will or the intestacy provisions. The exception to this is any property held as tenants in common which may be the case for the matrimonial home where couples have elected to not hold it in the default manner, usually if there are unequal ownership shares or contributions at the outset. It is important to address any joint assets if you do not wish your spouse to automatically inherit.

You may have also previously nominated your spouse as a benefactor of any private pension scheme and you may wish to update your nominations in such circumstances. Pensions would normally pass outside of your estate where nominated.

Can my spouse challenge my Will?

If you have updated or created a new Will during your separation that excludes your spouse, it is important to understand that your spouse could still bring a claim against your estate if you were to die before there full resolution of your divorce and they considered that they should have been made a reasonable financial provision from your estate. Any claim would have to be brought through the Courts however and a Will would stop the automatic inheritance right. In such circumstances the Courts will look to ensure a reasonable financial provision has been made for the spouse and can consider what the position may be if the divorce had been fully concluded. Once any final Order (Decree Absolute) is issued, the ability to bring a claim is usually removed.

What about my parents Wills?

It is not uncommon for parents of divorcing children to be feel anxious about an ex son or daughter in law inheriting under their estate whilst divorce proceedings are ongoing. Parents may wish to review their own estate planning to guard against this outcome. Any amendments can also be reviewed following the conclusion of a divorce if  it may be preferred to return to the original provisions.

At Clark Willis, our Will writing team are experienced at working alongside our family law team to provide advice to separating clients on the implications for their estate planning and Wills.  Our team includes members of the Society of Trust and Estate Practitioners( STEP) the global professional association for solicitors, accountants, and other advisers who specialise in family inheritance and succession planning

If you would like to make an appointment to discuss Will writing, then please speak to your local Clark Willis Solicitors office, in Darlington or Northallerton (01325 281111 or 01609 765765) or email enquiries@clarkwillis.co.uk.