Marital status changes the effectiveness of a Will. It is imperative to keep your will up to date to ensure your inheritance goes to your intended loved ones.
In England and Wales, when you marry any existing Will is automatically revoked (unless it includes a special reference to the intended marriage). If you die after your marriage, but before making a new Will you will be considered to have died intestate ie. without a Will.
Intestacy rules come into effect when someone dies without a valid Will, or sometimes when the original beneficiary of a Will dies and the Will doesn’t include details about what should happen next. In 2014 the intestacy rules governing who benefits from a deceased’s estate changed, with the intention of making the distribution of assets more transparent and more in line with the public expectation of how an estate should be divided.
If you die intestate and are married with children and the estate is work less than £250,000 then your spouse inherits the entire estate. If you are married with children and the estate is worth more than £250,000, your spouse will receive £250,000 plus personal belongings and the remaining balance is split between your spouse and children: 50% to the spouse and 50% divided equally among the children. Young children inherit at the age of 18.
If you die intestate before a decree absolute your spouse will still inherit a substantial proportion of your estate (the exact proportion depending on whether or not you have children – see preceding paragraph). After the decree absolute has been granted, children (and grandchildren) will be the main beneficiaries – this includes legally adopted children, but not step-children. If you don’t have any children then your parents will inherit. If you don’t have any surviving parents then your siblings, halfsiblings, grandparents, aunts and uncles etc. etc. benefit. If none are alive the whole estate goes to the Crown.
If you are separated, but not divorced you are therefore legally married and your Will remains valid. This means that if you die your spouse will be entitled to inherit whatever is set out in the Will. In many cases this would mean they inherit your entire estate. If you don’t want your spouse to benefit from your estate, but are not legally divorced, you must write a new Will. Many contested Wills and disputes over inheritance arise from these circumstances.
If you are still married, but separated it is possible to exclude your spouse from your Will. You’re allowed to leave your estate to whoever you choose. However, even if you are separated your spouse could make a claim on your estate under the Inheritance Act.
If you divorce, a Will made prior to divorce remains valid but your ex-spouse cannot act as an Executor or Trustee of your estate, nor benefit from it. Once a decree absolute has been issued, whatever your ex-spouse was due to inherit would be passed on under your Will as if your spouse had died. If everything had been left to your spouse with no other beneficiaries named, then your estate would be dealt with as if you had died without a valid will and dealt with under the intestacy rules above.
If you haven’t updated your Will to reflect the fact you’ve divorced, your estate could be divided up very differently to how you intended. This could jeopardise any inheritance you’ve planned for the rest of your family and mean that new partners or dependants aren’t provided for.
An ex-spouse can, in some cases, make a claim for financial provision (eg. If they can show they were being financially maintained by the deceased) under the Inheritance Act. (Note that there is no obligation to provide for an ex-spouse or civil partner in a new Will, even if you are paying them maintenance.) But having an up-to-date Will can help prevent such a claim being successful, ensure that your estate is divided up the way you want, and ensure new partners and all children are provided for.
Clean Break Orders
A financial settlement, also known as a Clean Break Order, is an agreement that neither party has financial ties to the other once the divorce has gone through. You won’t owe spousal maintenance or any other kind of financial provision. Clean Break Orders can help protect an estate against future claims under the Inheritance Act, but they won’t suit every situation, eg. If there are young children involved who still need to be provided for.
Claims against an estate take time and are costly. To protect the interests of other beneficiaries it is important to prepare a Will that gives your executors room to negotiate with your spouse if necessary.
The bottom line is, there is no substitute for a new Will. In order to make sure your estate is going to be divided up the way you want after your death, it is essential to have an up to date Will.
Will Aid is a Will-writing charity: https://www.willaid.org.uk/