A divorcing couple should remember that divorce affects inheritance under an existing will. A will made during a marriage is probably no longer be appropriate when there has been a divorce. Most people will not want an ex spouse to benefit under the terms of their will. It is almost always prudent to review any will following a divorce. In fact if either spouse already has a will which named the former spouse as a beneficiary that provision will be automatically revoked by decree absolute. Since that will almost certainly alter the whole balance of any such will it is almost always better to write a completely new will after a divorce.

Unless there is good reason to the contrary the best time to make a new will is after decree absolute and after all outstanding financial issues have been settled formally and finally. That is so that any future claim of an ex spouse can be properly quantified. Sometimes there is a clean break between the divorced spouses. In that case there is no need for a new will to make any provision for the former spouse. However, sometimes one spouse pays the former spouse maintenance or periodical payments following the divorce. In that case the former spouse is still a ‘dependant’ and so a new will needs to take that account. How exactly that should be done will require professional advice based on individual circumstances.

Simple cohabitation raises wholly different considerations. If a person lives with a partner outside of marriage (whether of the same sex or of different sexes) then no matter how long you may be together your partner is not legally related to you in any way and in the event of death he/she would be very unlikely to receive anything if you were to die without making a
will. If you want your partner as opposed, say, to relatives who might detest your partner, to benefit in the event of your death then a will is absolutely essential for a cohabiting couple.

If you specifically want your partner to receive a benefit from your estate when you die then you must make a will if you are not married to or in a civil partnership with your partner.

The intestacy rules only benefit “family” and in this context your partner is not “family” at all. What makes the situation very often worse, of course, is that the “family” may often dislike the partner and so to the grief of loss is added the bitterness of callous treatment at the hands of the “family”. This does not always happen but it is a common enough situation which can be avoided by taking elementary precautions. A will which makes provision for your partner may also appoint him/her executor so that you know that your estate will be dealt with in the way you would wish after death.

The three most common situations which arise on intestacy are:-

1. Where the deceased leaves a spouse but no children and no near relatives in which case the spouse takes all.

2. Where the deceased leaves a spouse and children in which case, provided the estate exceeds a certain amount, the property is divided between the spouse and children.

3. Where the deceased leaves neither wife nor children in which case certain near relatives benefit in a given order of priority.

It can readily be seen from the third situation that the surviving partner of a co-habiting couple can be left high and dry so it is almost always the case that clients in such a position should make a will.

Of course, no-one likes to think about death very much and many people feel they do not have much to leave anyway but it is surprising what comes to light in the way, for example, of insurance policies, benefits from pension plans at work, policies which pay off mortgages etc. Naturally, you also have to make sure that your will is kept up to date from time to time so that it reflects your current wishes.


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