It has previously been said that the two certainties in life are: Death and Taxes.

Unfortunately for some couples, divorce can also happen and often during this emotionally charged period, your will and the effect of your death are often some of the last things on your mind. 

With the introduction of no-fault divorce, a minimum consideration period of 20 weeks has been introduced between your application (stage 1) and being able to apply for a conditional divorce order (stage 2) and you have to wait 6 weeks and 1 days after your conditional divorce order to apply for your final divorce order (stage 3). Therefore, there is a minimum period, even in the most straightforward case, of 26 weeks or 6 and a half months before your divorce could be concluded.

The issue is most people assume that getting divorced cancels out any will they made during their marriage.

It does not.

After separation, after the divorce application being made and after the final divorce order, your current will remains valid but, for inheritance purposes, your ex-partner is treated as if they had died when you were divorced or your civil partnership was dissolved.

This could mean that any gift to your ex-partner would fail or any appointment of them as your executor (the person who would carry out your will and wishes after death) will be ignored.

This means that your estate could be divided different than how you intended which could have a serious impact, it could mean entirely different people are put in charge of administering your estate and could cost a significant amount of inheritance tax depending on your circumstances. Your will could be then subject to the intestacy rules which are complex and may result in a dramatically different outcome than what you intended even after separation.

Also, when you own a property jointly there are two ways you can hold the legal title with your partner:

1. Joint tenants; and
2. Tenants in common.

If you hold the property as joint tenants then you and your partner each have equal rights to the whole property, and if one of you were to die, the whole property would automatically pass by the rules of survivorship to the other co-owning joint tenant (i.e. usually your partner) regardless of what you will says.  

Finally, divorce/dissolution does not automatically extinguish financial claims between partners. It would be prudent to instruct a specialist family solicitor to ensure that any agreement/outcome is sealed into a financial order which can reflect the terms of any outcome on a legally enforceable basis and can provide for a clean break which would prevent any future claims against your assets, any future inheritance or your estate in the future.

Such matters are complex and it is important to take independent advice from one of our specialist solicitors to ensure your assets are protected and the outcome reached is in your best interests. Often the cost of representation is dwarfed by the benefits protected/secured.

Freeman Johnson boasts large, specialist family law and wills and probate teams across Durham (0191 386 4843), Darlington (01325 466221) and Northallerton (01609 766558) who would be able to provide bespoke advice to your situation.

If you would like to discuss any of the issues raised in this article, please contact us on any of the numbers above or submit an enquiry on our website www.freemanjohnson.co.uk