Although once the decree absolute is issued, any will you may have in place is read as if any reference to a previous spouse is removed entirely, during separation and the often lengthy process of divorce you are at risk of them inheriting under your will if you do not change it in the interim. (Or indeed if you do not have a will at all – under the intestacy rules).
In all honesty whilst in these circumstances a Codicil revoking a gift to a named beneficiary could be used to “cut out” the estranged husband/wife from the estate (provided you already have a will in place already) the best advice really would be to draw up a whole new will which does not make any provision for the estranged spouse. This should then sit alongside a letter of wishes setting out the reasoning behind the lack of any bequests to try and limit any potential claims against the estate.
Under inheritance legislation, it is possible for certain individuals to make a claim for provision out of a deceased’s estate where reasonable financial provision has not been made for them in the will. This includes the spouse or civil partner of the deceased. A claim for provision cannot succeed though unless the court is satisfied that the will does not make reasonable financial provision for the person making the claim. What financial provision is reasonable depends upon who is making the claim. A spouse or civil partner may seek financial provision that is reasonable in all the circumstances, whether or not it is needed for his or her maintenance. The court does not have to decide whether the deceased acted reasonably or unreasonably.
Even if the court is of the opinion that the will does not make reasonable financial provision for the person making the claim though, that does not mean the claim will succeed. The court has discretion as to whether or not, and if so how, to order provision to be made taking into account a range of factors. The court will often be required to weigh up competing interests, for example, of the person or persons making the claim and of those that are provided for in the will. Therefore it is for this reason it is recommended that a letter of wishes be written in order to set out why you have not provided for certain people in your will so that the court can take this into account when making their decision if a claim were to be brought.
It is also important to know how any property you may have is owned to determine whether this land or property would be included as part of your estate. If the property is owned jointly then it is not included in your estate as, upon death, it will automatically pass to the other joint owner. If the property is owned with another person as tenants in common, your share of the property will form part of your estate as there is no right of survivorship. If you do have property which you own jointly the Notice of severance of a joint tenancy should be used to sever any ‘joint tenancy’ of property and, if the property is registered, to register that change at the Land Registry. This converts a joint tenancy into a tenancy in common allowing you to leave your share to whoever you choose under your will rather than it passing automatically to the survivor of you and your spouse.
Whilst I can appreciate that all of this is adding to that never ending “to do” list you should really be putting this as your top priority as who knows what’s round the corner especially as divorce and separation are in the top five of life’s most stressful events.
Find out more in our guide to writing a will.