The breakdown of a relationship is usually a really stressful time, and with so much to sort out in the here and now, changing your will is likely to be one of the last things on your mind.
However, if you and your partner are separating – and especially if you are getting divorced – then it’s important to review your will. Making sure that your wishes are still maintained in your will despite the huge change in life circumstances is crucial.
In this article, we’ll talk about what happens to your will when a long-term relationship ends, and when you might want to consider using a discretionary trust.
What happens to my will if I get a divorce?
If you have a will in place and subsequently divorce, then there are specific rules for your estate if you then die without writing up a new one.
Once a final order to end your marriage has been passed, your will changes automatically, and anything previously left to your spouse in your will no longer goes to them. If you die, then anything that you left to your ex-spouse will be passed on as if they had died on the day your marriage ended, so everything they would have inherited instead goes to the next beneficiary.
In this circumstance, if everything in your will was set to go to your spouse, then you will be treated as if you had died “intestate” – that is, without a will at all – and your estate will be distributed according to the rules of intestacy for whichever part of the UK you’re in. These rules tend to prioritise close relatives in a very strict order, and won’t include step-relatives or cohabiting partners. You can read more about how this works in our article Sorting out an estate when someone dies without a will.
What this means is that if you are getting a divorce, you should take the opportunity to reconsider your existing will, or to write one if you don’t have one already.
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What happens to my will if I separate from my partner but we don’t divorce?
If you and your spouse separate, but don’t legally end your marriage, then your will is unaffected. As long as you still remain legally married, your spouse will still inherit everything that your will gives to them should you die.
If you don’t have a will and you die without getting divorced, then your estate will be divided according to intestacy rules. In England, if you are married with no children then your spouse inherits your entire estate. If you are married with children, your spouse inherits up to £270,000, all personal possessions, and half of any of the estate left after this, with the other half going to your children.
In other words, if you are separated from your partner in every way except for in the eyes of the law, it is really important to review and possibly rewrite your will to reflect your current wishes.
Should I add a discretionary trust to my will?
A will trust is an arrangement you can make as part of a will for part of your estate to be temporarily managed by someone you appoint – a “trustee” – until it is the right time to pass it on to your named beneficiary or beneficiaries. Trusts are commonly used, for example, to withhold money from children or grandchildren until they turn 18.
However, one slightly more flexible type of will trust is a discretionary trust. These are unique in that the trustee has decision-making power over when and how the beneficiary receives the assets. You can include a note to give your trustee a guideline for how to handle your assets and when to pass them on, but this is not strictly binding.
You could consider writing a discretionary trust into your will if you are in the midst of divorce proceedings and it is taking a long time to sort out your finances. This way, if the worst should happen and you die before the divorce or financial proceedings are finalised, then the trustee can make decisions about who actually gets your assets and in what proportions. They can see whether a financial settlement has been agreed for the surviving spouse and pass your estate on accordingly.
Trusts can be complicated, so it’s usually a good idea to consult a probate specialist or seek legal advice if you are considering changing your will during divorce proceedings. You can read more about how trusts work in our article What is a will trust?
If you’re looking for a solicitor, you can find one through the Law Society’s free Find a solicitor service. Make sure you check reviews for the solicitor you’re planning to use, so you can see how other people have rated their service.
You’ll also need to find a person, people, or a company who are happy to take on being a trustee. Think carefully about who you know that is responsible enough for the role. You can choose a company such as a bank or solicitor’s firm, but they will charge for this service.
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Learn more about how finances are affected during divorce in our articles Joint bank accounts: what happens if you split up? and How are pensions shared in a divorce?