When facing marital breakdown* and an uncertain future, often the last thing that parties think about is what will happen to their assets if they die before the divorce is finalised.
It is important to give this proper consideration. If you have a Will in place already, it may leave everything to your spouse, and that Will continues to have effect in terms of benefiting your spouse until Decree Absolute. If you have no Will in place, the rules of Intestacy may still provide that the bulk of your estate passes to the spouse from whom you are separating.
You may own property, often the house, where on death the other partner would receive your share automatically. It is possible to alter that arrangement but of course it can work both ways should your divorcing spouse die before you!
If you have a Will in place at the start of your divorce, that Will continues after divorce but any references to your spouse are construed as if they had died before you.
If on separation you decide to remake your Will to remove references to your spouse, and then you die before the divorce is finalised, your spouse may be able to bring a claim against your estate under the Inheritance (Provision for Family and Dependents) Act 1975, on the basis that as your widow they are entitled to reasonable provision from your estate.
It is therefore important to consider these issues at the point of deciding to divorce although it has to be said there are no clear answers. Equally it is important to consider the position after divorce once your affairs are settled. If you have an order under which you are making maintenance payments to your former spouse, there should be arrangement in place (for example life insurance) to cover the situation if you should die while the payments order is in force. Otherwise again your former spouse may, as a dependant, be able to make a claim against your estate under the Inheritance (Provision for Family and Dependents) Act 1975.
If you have a “clean break” arrangement then usually claims under the 1975 Act are barred.
Once your divorce is finalised it may be appropriate at that point to carry out a thorough review of your personal and financial circumstances and consider updating your Will to cover your changed circumstances.
Nowadays many couples will enter into pre-nuptial agreements with a view to protecting their assets in the event of divorce. Whereas these are not yet enshrined in legislation the Courts will recognise their effectiveness provided that the parties are properly advised and the outcome does not lead to hardship, particularly if children are affected.
*references to divorce also include dissolution of civil partnership and same sex marriages.