When a long term relationship breaks down it is not often the case that the process is a smooth one. There are always issues to be resolved but one that is often overlooked is how the separation can affect your estate.
Your Will
Even if you are not one of the parties to the separation, your Will may need to be reviewed.
If you have already made a Will, there is a good chance that you have named your current spouse or partner as a beneficiary, in which case, the gift to them will remain valid until either:
(a) you make a new Will; or
(b) your Decree Absolute is issued by the Court
If you are married and you do not have a Will and you were to die before your Decree Absolute was issued, then your spouse will take a substantial share of your estate under the Intestacy Rules.
If you are cohabiting then you will be relieved to hear that cohabitees have no automatic right to inherit their partner’s estates under the Intestacy Rules. However, if your partner is named in your Will, you will need to act quickly and make a new Will.
Property that is not covered by your Will
Joint Property
If you own a property with your spouse or partner, then regardless of whether you have a Will in place, it may pass to them “by right of survivorship”. You can avoid it by signing a document known as a “Notice of Severance”. This ensures that your share of the property passes in accordance with your Will.
Pension Benefits
If you have a pension, then there may be a lump sum payable on your death. A nomination form is usually completed naming a person to receive those benefits. You may have nominated your spouse or partner, in which case you should contact your pension provider to request a new form.
Authority over Your Affairs
You may have signed a Power of Attorney (often called an Enduring Power of Attorney or a Lasting Power of Attorney) in the past authorising someone to deal with your finances on your behalf.
If you have named your spouse or partner as one of your Attorneys, then you will need to sign a Deed of Revocation bringing this to an end, as well as a fresh Power of Attorney to replace this.
Who else may need to take action?
If you were to inherit any substantial assets before a financial settlement is reached with your spouse, then that inheritance will form part of your assets to be included in the divorce settlement.
Your parents should, therefore, review their Wills to avoid part or all of their estate ending up with your spouse. This can be done by including a trust in their wills which to hold your inheritance for you, instead of it passing to you outright. Once the financial settlement was concluded, the assets within the trust could be transferred out to you free of any claims from your spouse.
Sutton McGrath Hartley is a multi-disciplinary firm of Accounting & Business Advisory, financial advisers and lawyers offering comprehensive financial expertise for all business, personal and family interests. Our specialist departments can help with tax, wills, trusts and estate planning. To discuss your requirements please contact Tom Rodgers on 01709 872106 or wills@smh.group.
Tom Rodgers, Solicitor at Sutton McGrath Hartley Wills & Probate
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