When it comes to the breakdown of a long-term relationship, often the last thing on your mind will be your Will. Already dealing with a vast array of matters both legal and non-legal, a Will often falls at the end of a very long and ever-growing list. 

For those without a Will in place, your Estate will be governed by a set of rules known as the Intestacy provisions. 

In this short article, we want to share with you some initial considerations, which might help you navigate these challenging times. 

*Any reference to ‘spouse’, will also include civil partners.*

The starting point will be to consider your marital status. The law surrounding Wills and Intestacy recognises a spouse (husband or wife), however, no such recognition is afforded to an unmarried partner. 

Marriage and the impact on your Will or Intestacy

If you have a Will in place, a later marriage will revoke that Will. This is not the case if your Will was made in contemplation of your marriage. You should therefore either review your Will prior to marriage or shortly after.

Separation from a spouse will not result in an automatic alteration of your Will or the Intestacy provisions. For this reason, it is important to review your Will promptly if your preference is to remove reference to or involvement from your current spouse. 

Divorce, in the form of a Decree Absolute, will result in an automatic alteration to the terms of your Will or the Intestacy provisions. In these circumstances, within a Will, the spouse is treated as having predeceased you. If there is no Will in place, the former spouse will no longer have any rights under the Intestacy provisions. It is important to note that a Decree Nisi will not achieve the same result. 

Unmarried couples and the impact on your Will or Intestacy 

As with a married couple, separation of an unmarried couple will not alter the terms of a Will. For this reason, it is important to review your Will promptly and should you wish to do so, remove reference to your former partner. 

In respect of Intestacy, an unmarried partner would have no entitlement under the Intestacy provisions. 

Claims against your Estate 

Whilst we have established the legal position, following death, there will be circumstances that allow a former spouse or partner to bring a claim against your Estate.  It is important that consideration is given to these as part of your Will review. 

So what action should you take? 

First and foremost, check whether you have a Will in place and if so, what provision have you made for a spouse or partner. If no Will is in place, ensure you understand the Intestacy provisions and how they would apply in your circumstances. 

Additional considerations should include, the impact on any children eg if removing a spouse or partner from benefit, will children receive in their place and if so at what age? A further consideration is the Inheritance Tax position on your Estate. This could be changed significantly if the Estate no longer benefits from a tax free spousal exemption. 

Consider speaking with a Private Client solicitor to arrange the preparation of a Will or a review of your existing Will. Not only can your solicitor advise on the Will but also the potential for any claims that could be made against your Estate by a former spouse or partner. 

If your former spouse or partner has their Will stored with the same firm of solicitors, it would be sensible to notify the solicitor of the relation breakdown and they can arrange the appropriate independent advice. 

In order to discuss your Will further, please contact a member of our Private Client team.