Making a Will within divorce proceedings

Barker Son & Isherwood LLP


Phone 01264 353411


Rarely do people wrapped up in a separation or divorce think about making a Will, or changing a Will that they made many years before. It is not until we suggest this that clients consider the potential ramifications of not having a Will that reflects their current situation.

A valid Will remains valid throughout divorce proceedings. If you, like many others, have made a Will that leaves everything to your soon-to-be ex, that person still stands to inherit until such point as the divorce is finalised. So, a lengthy separation followed by divorce proceedings will have no effect on the Will or the wishes you expressed in it. If your Will leaves things to your husband or wife, and you die before the Decree Absolute is issued, that is what they will get - regardless of the state of your relationship and your feelings towards them, and theirs towards you.

It’s important to think about this time during which your Will remains in place and enforceable and whether its terms no longer suit your situation. You could of course take your chances and leave things as they are. However, aside from the possibility of your things passing to the ‘wrong’ person, you should also consider that in most cases divorce will release a former husband or wife from their role as executor. If your ex-spouse is the only executor appointed in your Will then this would leave a significant void.

What if you have never made a Will? You are not the first!  However, it means that if you die before your divorce is finalised, your spouse would inherit the first £250,000 of your estate. Anything over that amount would be divided between your spouse and your children.

All of this presupposes that you would be keen to divert away from your spouse any benefits that were once intended for them. Perhaps you would like to provide for a new partner, for other family members, or perhaps solely for your children. Having a Will that is kept up-to-date (you can change it as often as you like to suit your circumstances) is the only way to ensure that the things you own will be passed on to the ‘right’ people. 

Talk to us about putting provisions in place during separation and divorce on or by calling 01264 353411.

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