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Should you Re-write your Will Following Divorce?

Divorce and bereavement – are two of the most stressful experiences a person can go through in their lifetime. When you’re going through a divorce, you’re understandably focused on the immediate issue at hand. Dividing assets and, if you have children, agreeing on how your children’s needs will be met.

Thinking about what happens after we die doesn’t come naturally to many of us and when you’re in the throes of a divorce, it’s probably the furthest thing from your mind. Divorce is a major life change and one that should trigger you to consider re-writing your will.

Who Gets What?

Often, money is a dirty word, and we try not to talk about it too much. As you’re going through the divorce proceedings, though, dividing your marital financial assets fairly is probably at the forefront of your mind. But have you thought about what happens if you were to die during the divorce proceedings or afterwards? How does your will apply?

After you’ve received your decree absolute to finalise your divorce, your will is treated as though your ex-spouse has died before you. Any gifts or appointments made in your will no longer apply. On the one hand, this is good news if you no longer wish for your former husband or wife to be your beneficiary. However, you’ll need to consider who should be a beneficiary – who gets what?

Things are more complicated if you’re in the separation stage of your divorce. Even if you’ve been granted a decree nisi, you are still legally married – regardless of whether you’ve been separated for a week or several years. This means your most up-to-date will still apply.

In the UK, if you don’t have a will at all, then the rules of intestacy come into play and describe who is entitled to inherit your estate and how much. So, if you’re married in the eyes of the law, your (ex)spouse stands to inherit substantial proportions of your estate.

Who Do You Want to Carry Out Your Wishes?

When you wrote your will, you will have named an executor – the person who administers your estate and carries out your wishes. Normally, this will have been your spouse or civil partner, but you may have named a few people as your executors. As you go through your divorce, you’ll need to ask yourself if your former husband or wife is still the right person to be the executor of your will?

Every circumstance is different, so you’ll need to ask yourself whether you’ll continue to trust your former spouse in this role and whether it will cause any discord amongst your loved ones or any other executors you may have named.

Who Do You Want to Arrange Your Funeral?

Overall, none of us ever wants to think about our own funerals. Yet, it’s a valid reason to update your will after a divorce.

If you’ve previously named your ex-spouse as your executor or specifically named them as the person to make funeral decisions, then they’ll retain this right. Without updating your will, your former spouse will be able to decide when, where, and how your funeral will take place. They won’t need to take any other family members’ wishes into account.

Funerals are very personal affairs, so having the right to decide how yours will take place is a big responsibility. Re-writing your will after your divorce ensures that you’ll have the person you want to arrange your funeral.

Who Do You Want to Care For Your Children?

If you have children with your ex-spouse, then their welfare will be your primary concern during your divorce proceedings. But have you considered what happens to them if you were to pass away?

We covered estate planning earlier to ensure that your loved ones receive the financial assets that you want them to. When it comes to your children, you may wish to consider ring-fencing assets for them in a trust, until they’re old enough to inherit.

Beyond the financial practicalities of caring for your dependent children, you’ll also need to consider who will look after them after you pass away. This may not be as simple as your former husband or wife, particularly where you may have re-married or living in a blended family situation. Including your choice of guardian is the safest option to make provisions for your children, so it’s worth considering as you rewrite your will after a divorce.

It’s Not Easy

When you’re already going through the challenges of a divorce, re-writing your will is not easy, but shouldn’t be overlooked. From ensuring that your assets are distributed the way you specify to making sure your children are cared for as you see fit, re-writing your will is the safest way to carry out your wishes after a divorce.

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