Separation and divorce are never easy. Emotions, parenting arrangements, division of property and support calculations make couples overwhelmed. Not surprisingly, people often forget to review the old Wills they made when they lived as a couple.

As a result, your new loved one may be cut out from your estate, and your ex may receive most of your property simply because your old estate plan is still in force.

In this article, we are touching upon possible effects of a breakdown on a Will. However, legal consequences of a family spit up are very fact-specific. One needs to consider where the couple lived and whether they were common law or legally married. Also, what estate plan they have, and whether they have finalized their breakup officially through a separation agreement or divorce. For this reason, please discuss the details of your separation and divorce with your estate planning and wills lawyer to make the right steps.

Effect Of A Legal Marriage Split On Your Will

Quite often, you name the person you are married to as your executor and beneficiary under the Will. However, in many jurisdictions, your old Will would remain effective on separation. Those designations in your Will would remain valid until after you formalize your divorce.

It is not uncommon that when married couples separate, they forget to revise or even review their Wills. Also, many people fail to complete their divorce for many years. Suppose you start a new common-law relationship on separation while being legally married. You now have a common-law spouse, but you also have an ex-spouse who is still your formal spouse on paper. Now suppose you pass away, and the formal ex-spouse who was not in your life since the breakup comes to the scene. Because you failed to finalize your divorce, the ex may end up with most of your assets if your old Will remains valid on separation.

That is why it is crucial to review your Will on separation to make sure that it reflects your current wishes. If you are not sure about the details of your new estate plan yet, create a temporary Will which outlines your current intentions. It is better than to leave nothing but disputes to your significant ones.

What Happens To Your Will On Separation If You Lived Common Law?

Suppose you named your common-law spouse as an executor or beneficiary under your Will when you lived together. In many jurisdictions, your ex-common law partner is deemed to have predeceased you for the purposes of your Will.  In other words, on separation, your ex loses all powers and gifts you gave to him or her in your Will. Still, you should change your Will immediately if you wish to protect your estate from your ex-common law.

The devils hide in determining the separation date. This date is not always clear and can be in dispute, especially if the estate is considerable. If your ex can prove that your common-law relationship still existed at the time of your death, the appointments and gifts you made in his or her favor may be upheld. So, you should update your Will without delays unless you wish your old Will to stay for the benefit of your ex-common-law partner.

Do I Need To Update A Will On Divorce?

Quite often, divorce changes relationships and the environment completely. Because it formalizes the family breakdown, it also changes a lot in terms of formalities. In many legal systems, the rule is that your ex is deemed to have predeceased you once you get divorced. So, if your old Will names him or her as an executor or beneficiary, such designations lose their legal effect. However, you still need to review your old Will on divorce to make sure that it outlines your current intentions.

It is a common mistake that people name their spouse as the only executor and beneficiary under their Wills and do not make alternative designations.  Also, it is not uncommon when people name members of their spouse’s family as executors or beneficiaries. These choices may work when the couple is happily married. However, the old Will needs to be updated on split up because it may fail to address the new reality of the now ex-spouses.

Starting A New Relationship…

Suppose you revised your Will on separation or divorce and left everything to your adult children in an attempt to protect your property from a new relationship. Your new partner or spouse may get a share from your estate anyways. The rule in many legal systems is that a partner or spouse receives adequate support on the death of the other. So, your new relationship may trump the gifts you left to your children. The situation can be even more complicated in blended families where both spouses have children from previous relationships.

For this reason, it is crucial to review your Will and estate plan when your family situation changes. This simple step will protect your loved ones from stress, confusion, lost property, and litigation costs.

Biography: Anna Dunaeva is the founder of DLegal Law Office. The predictability and transparency of legal services has always been a focus in Anna’s practice. She is passionate about sharing her legal knowledge and through continuous communication, Anna delivers on her commitment to keep clients at the centre of her practice.

Photo by Rhodi Lopez on Unsplash

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