Can an ex-spouse inherit your estate after you separate or divorce?
The answer depends on whether your divorce has been finalised, what your Will says and whether you have updated your estate planning since your relationship ended.
Separation alone does not automatically change your Will. Divorce affects certain parts of a Will, but it does not necessarily produce the outcome you would have chosen.
That is why it is important to review your Will following a separation, divorce or remarriage.
Can a Separated Spouse Inherit Your Estate?
If you are separated but remain legally married, your husband or wife can still inherit from your estate.
A separation does not automatically cancel gifts made to your spouse in your Will. If your existing Will leaves your estate to them, those instructions may continue to apply until the divorce is legally finalised.
Your spouse may also inherit under the intestacy rules if you die without a valid Will.
This can remain the case even when:
- You have lived apart for several years
- You have started a new relationship
- Divorce proceedings have begun
- You no longer have regular contact
- You have informally agreed how your finances will be divided
Until the marriage legally ends, your separated spouse remains your spouse in law.
Can an Ex-Spouse Inherit After Divorce?
Once a divorce is finalised, a Will is generally interpreted as though the former spouse died on the date of the divorce.
This normally means that a former spouse will no longer:
- Receive gifts left to them in the Will
- Act as an executor or trustee
- Exercise powers granted to them through the Will
However, divorce does not automatically revoke the entire Will. Instead, the provisions involving the former spouse usually take effect as though they had died before you.
This can create unintended consequences.
For example, a gift may pass to a substitute beneficiary named in the Will. If no substitute beneficiary has been included, some or all of the estate could be distributed under the intestacy rules.
Does Divorce Cancel Your Will?
Divorce does not usually cancel your whole Will.
It changes how provisions involving your former spouse operate. The remainder of the Will may remain valid, but it might no longer reflect your wishes.
Questions that may need answering include:
- Who should inherit instead of your former spouse?
- Who should act as your executor?
- Who should manage any trusts?
- Who should inherit your home?
- How should children from previous relationships be protected?
- Should a new partner receive anything?
An estate planning review can identify gaps created by the divorce and help ensure your Will still works as intended.
What Happens If You Remarry?
Marriage generally revokes an existing Will in England and Wales unless the Will was prepared in contemplation of marriage to a particular person.
If you remarry and do not make a new Will, you could die intestate.
This means your estate would be distributed according to the intestacy rules rather than your personal wishes.
Remarriage can be particularly significant for blended families. Depending on how your assets and Will are structured, children from an earlier relationship may not ultimately receive the inheritance you intended for them.
Professional advice can help you balance the needs of a new spouse with those of your children and other beneficiaries.
Can an Ex-Spouse Make a Claim Against Your Estate?
Updating your Will does not always prevent somebody from attempting to make a claim against your estate.
In some circumstances, certain people may be able to bring a claim if they believe reasonable financial provision has not been made for them.
Every family situation is different. Factors can include the financial arrangements made during the divorce, the terms of any court order and whether ongoing financial obligations remained.
Anyone concerned about a possible claim should obtain advice that considers their individual circumstances.
What Happens to a Lasting Power of Attorney After Divorce?
Your Will is not the only document you should review.
You may previously have appointed your spouse as an attorney under a Lasting Power of Attorney. An LPA allows chosen attorneys to make certain decisions on your behalf if required.
Following separation or divorce, you should check whether:
- Your former spouse is named as an attorney
- Replacement attorneys have been appointed
- Your remaining attorneys can still act
- Your instructions and preferences remain appropriate
- A new LPA should be prepared
Do not assume that changes to your relationship automatically produce the arrangement you now want.
When Should You Update Your Will?
You should consider reviewing your Will whenever a major life change occurs.
These changes can include:
- Separation
- Divorce
- Marriage or remarriage
- Beginning a new relationship
- Having children
- Welcoming grandchildren
- Buying or selling a property
- Starting or selling a business
- A substantial change in your finances
- The death of an executor or beneficiary
Even when there has been no major change, it is sensible to review your Will periodically.
Protecting Your Wishes After Divorce
So, can an ex-spouse inherit your estate?
A separated spouse may still inherit while you remain legally married. Following divorce, gifts and appointments involving a former spouse will usually be treated as though that person died when the marriage ended.
However, that does not mean your estate will automatically pass to the people you now want to benefit.
A professionally reviewed Will can help you:
- Choose the right beneficiaries
- Appoint suitable executors
- Protect children and other dependants
- Plan for a blended family
- Reduce uncertainty for your loved ones
- Ensure your wishes are clearly documented
Review Your Will with AHJ Wills & Estates
If you have separated, divorced or remarried, it is important to check that your Will and wider estate planning still reflect your wishes.
AHJ Wills & Estates provides straightforward Will writing, Lasting Power of Attorney and estate planning services to clients across Sheffield, Rotherham and the surrounding areas.
Our experienced team can review your current arrangements, explain your options clearly and help you put suitable plans in place.
Call 0114 553 5416 or contact AHJ Wills & Estates to arrange a confidential discussion.
This article provides general information for England and Wales and should not be treated as advice concerning an individual estate or family situation.
Recent Comments