If you have separated or divorced or are currently going through a divorce or separation, perhaps the last thing you might think about is updating your Will. However, it is one of the key elements of the separation and divorce process solicitors will advise you to deal with immediately.
Why update your Will if you are going through a separation or divorce?
Usually, when married couples or couples in a civil partnership make their Wills, each leaves some or all their estate to the other. The fact that you have separated from your spouse or partner, does not automatically prohibit them from inheriting your estate.
You do not even need to be married for a cohabiting partner to inherit your estate if you have made provision in a Will that some or all your estate to be left to them.
The purpose of a Will is to direct the distribution of your estate after your death. That means if a spouse or partner, whether you are married to them or not, is a beneficiary in your Will, they will inherit the amount of estate you specify in your Will.
Finally, if you do not have a Will and you are married or in a civil partnership, whether or not you are separated or divorced, you should make a Will to ensure you are able to direct who should inherit your estate.
Succession (Scotland) Act 2016 implications
Section 1 of the Succession (Scotland) Act 2016 makes a significant and automatic change to a Scottish Will on divorce or termination of a civil partnership. This happens without the testator making any changes to the Will. The testator is the person who makes the Will. Section 1 states that when you divorce your spouse or terminate a civil partnership, your former spouse or partner will be treated as having died before you.
This means that if you have appointed your spouse or partner as your executor and you divorce or terminate your civil partnership, your former spouse or partner can no longer take up the position of executor. Accordingly, it is essential to review your Will to determine whether you have a joint or substitute executor named in your Will.
It is also important to note that if your former spouse or partner is named in your Will as the sole beneficiary of your estate and if there is no provision for distribution should they die before you, your estate will fall into intestacy. Intestacy is the term used to describe the inheritance where there is no Will.
However, if you have divorced your spouse or terminated a civil partnership and you wish your former spouse or partner to either continue as executor and/or beneficiary, you must specifically state that in the Will.
What might happen if you fail to update your Will?
If you are separated and do not update your Will, should you die before you are divorced, your current spouse or civil partner, if appointed, would act as executor and, if they are also a beneficiary, be entitled to the estate specified in your Will.
In addition, your spouse or civil partner would be entitled to Legal Rights to your estate even if they were not named as a beneficiary.
Updating your Will is critical when you have a relationship with another person whilst you are still married. Whilst your new relationship may have lasted for some time, unless you divorce or dissolve the civil partnership you had with your previous spouse or civil partner, if you were to die, your new partner would not receive any share in your estate.
Specialist Estate Planning Lawyers, Edinburgh
Partner, Peter Shand heads our Asset Protection Group and specialises in estate planning and tax. This article focuses on the position in Scotland. The position in England differs and Murray Beith Murray have dual qualified lawyers who can advise on both jurisdictions.
If this article has raised any questions or you would like to discuss your affairs, then please complete our contact form or call us on 0131 225 1200.
Murray Beith Murray was established in 1849, as advisors for generations of clients, committed to our values of integrity, expertise and trust. This aim and these values continue to this day as does our commitment to be here when you need us.