Marriage, Divorce and Separation: The Effect on Wills and Intestacy

As human beings progress through life, steps are often taken which result in a profound effect, psychologically, practically, or both. Cohabitation, partnership and marriage are three such life events, as are separation, dissolution and divorce.

As so often Shakespeare displayed his prescience when he wrote:

“But love is blind and lovers cannot see 
The pretty follies that themselves commit” 

The optimism present at the time of cohabitation, partnership and marriage can be followed by the cynicism of separation, dissolution and divorce. 

Family lawyers have to take account of and advise on the potential consequences of each of these steps in many areas of the lives of their clients. These include, in the most prosaic of examples, wills and inheritance. 
How people organise their affairs during their lifetime will have an effect on what happens on their death. The following are important examples. 

The effect on a pre-existing will of a subsequent cohabitation, civil partnership and marriage

Cohabitation 

If one or both of the parties who decide to live together outside marriage or a civil partnership already has a will, then that will continue in force. This means, for example, that even if the will makes no mention of the new partner, then on the death of the partner with a will, the state will be distributed according to the terms of the will. That may or may not include the new partner. 

Civil partnership and marriage 

If one or both of the parties already has a will and the parties either enter into a civil partnership or marry, then that pre-existing will will cease to have any effect and will have been revoked in the eyes of the law.

The only exception to this rule is if the will states specifically that it was made in readiness for the partnership or marriage with that particular partner. In this event the will continues in force. 

The effect on a pre-existing will of a subsequent dissolution of a civil partnership or divorce 

If one or both of the partners who have entered into a civil partnership or marriage later separate and the partnership is dissolved or the marriage comes to an end by divorce, then the will made by either of them remains in force.
However (and this is a very important exception) if the separated partner was a beneficiary under the will, that provision in the will ceases to have effect. 

Intestacy 

About half of the adult population in the United Kingdom have not made a will. In those cases, the rules of intestacy (meaning the absence of a will) apply. 
Under the intestacy rules, Parliament has set down the ways in which an estate will be divided in the absence of a will. Different rules apply depending upon which area of the United Kingdom you live in. In brief, the rules in England and Wales state: 

  • If the deceased dies leaving a spouse or civil partner but no surviving children and the civil partnership or marriage still exists, then the estate is paid to the surviving spouse or partner. 
  • If the deceased dies leaving a spouse or a civil partner and surviving children, the estate is divided as follows 
  • The surviving spouse or civil partner will receive all the assets (including property) up to £270,000 and all the personal possessions belonging to the deceased 
  • The surviving spouse or civil partner will also receive one half of the remainder of the estate 
  • The other half of the estate is divided equally between the surviving children 
  • If there is no surviving spouse or civil partner, then the estate is divided equally between any surviving children or their descendants. 

It will be seen that this is a complex area of the law. This piece seeks merely to draw attention to the issues and is not a substitute for detailed legal advice which will take account of the circumstances in each case. 

The abiding rule is that in order to achieve what is required, everyone should make a will and ensure that it is kept up to date as circumstances change. Never is that more important than when a change is about to take place or has already occurred in personal domestic arrangements.

If you or anyone you know, are affected by the issues raised above and would like more information or some preliminary, confidential advice, please contact one of our experienced experts in our family team.