Wills and intestacy issues in separation and divorce
The way property passes on death
Property does not only pass under your will. Joint property (such as joint bank accounts, joint insurance policies and houses owned as joint tenants) passes by survivorship on production of the death certificate of the joint owner.
Property can also pass by nomination, for example insurance and pension policies, and death in service benefits at work. Otherwise property and money usually passes under a Grant of Probate if there is a will or a Grant of Letters of Administration if there is no will.
If you have a will your estate will be administered by the executors you have appointed and will pass to the people you have provided for in your will.
If you die without leaving a will then your property passes to your next of kin under the intestacy laws and your estate is administered by the closest relative. Your spouse takes the first £250,000 and a life interest in half the remainder with your children taking the other half and the remainder, on your spouse’s death. If you have no children the spouse takes the first £450,000.
Decree absolute of divorce
Decree absolute of divorce ends your marriage and revokes any nomination in favour of your spouse or any provision for them in a will, unless the will or nomination were made in contemplation of the divorce and expressly not to be revoked by it.
Inheritance (provision for family and dependants) Act 1975
You cannot always leave your property as you want. If you have dependants the law says you have to make provision for them. A dependant is someone you support financially or provide a home for – such as minor children or a partner whom you at least partly keep, whether married or unmarried.
These people have a right to claim against your estate if you do not make provision for them in your will or if the intestacy laws make no provision for them. This can cause your estate to be frozen and eroded by the costs of litigation after your death.
Second marriages and new relationships
These can cause problems if you do not address the difficulties in advance. If you remarry and do not make a will your new spouse could inherit all or most of your property so your children get nothing. Instead you might prefer to make provision for your new spouse/partner to have the use of some or all of your property for their life, with it going back to your children after their death. These arrangements are called life interests and can be the fairest way of organising your affairs.
Common law marriages
There is no such thing recognised by the Law of this country. You have no rights on intestacy unless married or dependant when you can claim provision under the Inheritance Act referred to above.
In summary: the importance of making a will
The important thing to remember is a properly thought out will can prevent a lot of problems. Do not leave your property and money to chance. The law is complex and specialist legal advice can be the best form of preventative medicine.
This information is designed to be neutral and will be given to everyone to whom it is relevant. It is not designed to replace detailed legal advice tailored to your particular circumstances. It is intended to help you identify some options which may be open to you. It is not for reproduction and may not be used in any other context.