Why is it important to write a Will or update a Will following separation?
Life changes can be difficult, especially when a family separates. It’s important to think about the future. Your client should consider the impact of the separation on what they want to happen to their assets if they were to die.
This advice is the same for both marriages and civil partnerships.
How does a separation affect inheritance?
Many people separate long before a formal divorce or dissolution is finalised, which means that they may be separated but still legally married or in a civil partnership. This could leave your client vulnerable in the meantime.
If your client has not made a Will, they would be said to have died ‘intestate’. There are specific rules about who can inherit in these circumstances. Under these intestacy rules, or if they have a Will in place benefiting a spouse (or civil partner), then that person would still inherit. It is only a final order that would alter the distribution of their assets.
A final order is the order granted when divorce or dissolution proceedings have been finalised and it legally ends a marriage or civil partnership. Sometimes a client may delay applying for a final order in divorce or dissolution proceedings until they agree to a financial settlement. This means that they would remain legally married or in a civil partnership until they apply for a final order.
There are also circumstances where a client may apply for a final order, even if a financial settlement has not been finalised. This means that the marriage or civil partnership would legally come to an end, however a financial agreement would still need to be reached. This could take some time to settle.
It is important to be aware that until a final order is made, your client would still be considered as being married or in a civil partnership. Any gifts in a Will to a spouse (or civil partner) would still stand if they died before the divorce was finalised.
Inheritance — what happens if a couple are separated but not divorced?
Under intestacy rules a surviving spouse/civil partner inherits everything (where there are no children). If there are children the spouse inherits the first £322,000 of an estate and then 50% of the remaining estate over this value.
If a couple have separated but not yet divorced or dissolved their partnership, they may not wish for their estate to pass to their ex-partner. Writing a new Will can help make sure that your client’s wishes are made clear in the event of their death and means that the intestacy rules will not apply.
If your client had a Will (often a mirror Will with their ex-partner) then this would still be effective even after a separation. Any gifts to their ex-partner (quite often this might include all of someone’s money and personal possessions) would still stand. After a separation, many people may wish to make different choices about who gets their estate and who takes care of any children.
Can a former partner or spouse challenge a new will?
If your client is excluding their spouse or civil partner they should be aware that their spouse may still be able to make a claim for financial provision from their estate. Under the Inheritance (Provision for Family and Dependants) Act 1975 a separation does not prevent a spouse from making a claim.
Even after a final order has been made to legally end the marriage or civil partnership, an ex-spouse or civil partner could still potentially make a claim against an estate. Particularly if they were still receiving support or if financial negotiations were ongoing. This might be the case if there is a jointly owned property- or where one party is more reliant on the other financially and a financial settlement or order has not been made
Once a financial settlement agreement or order is made, this usually rules out any potential claims against an estate. Financial settlements or orders will attempt to create a clean break. If this is not possible they will usually include provision preventing a future claim against an estate.
How would a new Will affect child arrangements?
A new Will cannot override parental responsibility. This means that if your client died, it is likely that any children under the age of 18 years old would then live with an ex-partner. However, it is still important to make sure your client is able to address their wishes in relation to child arrangements.
What happens if a couple jointly own property?
An important consideration is any jointly owned property. It is becoming more common that the family home is the largest asset a client might own. It is therefore, usually, the most important one to protect. The majority of clients that are married probably own their property as joint tenants.
Joint Ownership
Joint tenants hold a property equally. They each have an equal share (50/50) and this means that if one owner dies, their share passes automatically to the survivor under what is known as the ‘rule of survivorship’.
Tenants in Common
Tenants-in-common own a distinct share in a property, which can be equal or unequal, this means that one party could own 40% of the property and the other owns 60% of the property. As each party owns a separate share of the property, it means that each party has the ability to gift their share to whomever they wish.
Before Updating a Will
It is important that the client checks whether the property is owned jointly or as tenants in common, before updating their Will as it will determine how the property is dealt with.
It is easy to check this on the land registry by paying a small fee (usually £3) to download the title deeds if they do not have a copy.
The client will be able to check the ‘proprietorship section of the register’ section of the title deeds. If the following wording is present,
‘No disposition by a sole proprietor of the registered estate (except a trust corporation) under which capital money arises is to be registered unless authorised by an order of the court’,
then the client owns the property as tenants-in-common. If it is not present then it is likely that they own the property as joint tenants.
If a property is owned as joint tenants then it doesn’t matter whether the client updates their Will. If they die before the property is sold or transferred, then the property will pass automatically to the surviving joint owner (rule of survivorship).
If a client wants to ensure that their share of any jointly owned property passes to someone other than their ex-partner, they should sever the joint tenancy. This means that they would legally change the way they own the property from being held jointly, (which means you have an equal share of the property) to being held as tenants in common.
If both owners are going to own the property in equal shares then no further documentation is needed. If they wish to own different shares (60/40 for example) then they may need to complete a declaration of trust or notify the land registry of the unequal shares. You might find it useful to read more information on the government website.
Severing a tenancy
If an owner wants to change the ownership from jointly owned to tenants in common, they will need to apply to the Land Registry to ‘sever the tenancy’.
To apply to sever a tenancy, the client will need to complete a form SEV. There is no fee to apply and it will need to be sent to the HM land registry.
It is important to note they will need to serve notice on their ex-partner which may not be appropriate in some circumstances. Your client may wish to seek specialist advice in relation to this.
Property in the sole name of partner or spouse
If the property is in the sole name of the client’s spouse or civil partner, which means that it is owned by them, your client may worry whether they can continue to live there. They might have concerns about what will happen if their spouse or civil partner tries to sell the property before a financial agreement following a separation has been reached.
Your client can take steps to protect themselves by applying to register a Matrimonial Home Right at the Land Registry.
A matrimonial home right can allow the client to continue to live in the family home and will make sure they receive notice from the Land Registry if their spouse or civil partner tries to sell the property.
To apply for a matrimonial home right the client will need to complete a HR1 form and they can access this form at gov.uk and send this to the Land Registry for this to be actioned. There is no fee to register a matrimonial home right.
Does your client need a New Will or Codicil?
A Codicil is a new document that is read together with the original Will. It may change some of the information in the Will or it may add new information. In order to be valid it must be signed and witnessed in the same way as the Will. A Codicil is particularly useful where there is no electronic copy of the draft original Will or where a client is using a different Will drafter.
If there is an editable copy of the original Will, it may be more straightforward to amend this and complete a new Will entirely. This saves your client having to compare two different documents to make sure the instructions are clear. It is often easier to have only one document to read.
Either option will be valid so it is largely down to your clients preference. If there are lots of changes to make then a new Will would probably work best. It might also be better to do a new Will if there are already several Codicils in place.
How easy is it to create a new Will?
A new Will can direct where the client wishes their property to go in the event of their death. It ensures your client can benefit the people that matter most to them and provides certainty and clarity as to their wishes. Encouraging a client to make a new Will following a separation helps protect their assets. Even if a financial settlement has not been reached, your clients are still able to make a Will to direct what happens to their share of assets on their death.
Making a new Will is not difficult and there are many options available to clients. There is more detailed information on Wills on advisernet. Your client can make a new Will themselves if their circumstances are straightforward. Or they may prefer to seek assistance from a solicitor or Will writer. There are also many charities that offer free Will writing services in exchange for supporting them with gifts in Wills.
Seetal Jandoo is a family expert in the Expert Advice Team at Citizens Advice
The information in this article is correct as of the date of publication
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