Marriage, Divorce and Separation

It is often misunderstood the effect your marital status can have on your Will, arguably sometimes it is particularly unclear. Maybe you wish to have a better grasp of where you stand and what is going to happen if you should pass away given your marital status.

This article aims to help clear up some of the lesser-known rules around Will Writing and Marital Status as the two are much more linked than you may suspect.

(A small disclaimer: all references to marriage and divorce are interchangeable with civil partnership and dissolution.)

Marriage/Civil Partnership

While we are all aware of what Marriage and Civil Partnership is, less commonly known is that marriage has a distinct effect on how you should write a Will. It is mistakenly believed that marriage has no effect on your Will and that there is no concern here.

But in fact, marriage can outright revoke your Will completely unless you take steps to ensure that this doesn’t happen. The reason this is a particularly important issue is that if you were to have children from a previous partnership and have a Will benefiting them, by marrying someone new you could be disinheriting them completely by accident.

So, if marriage automatically revokes a Will, but you don’t want this to happen to you when you do marry, then what can be done?

This is where the clause known as Contemplation of Marriage comes in, this clause is used in Will Writing where you express a contrary intention to the ‘automatic revocation’ of your Will upon getting married. Specifically, this clause is a declaration within your Will that your intended marriage to your potential future spouse shall not have the effect of revoking your Will.

Okay, but do we have to get married within a certain time limit for this to take effect?

• The most common question we face is how long do you have before this statement becomes invalid? While there is not a concrete time period set, there is legal precedent that the marriage needs to be done within a ‘reasonable’ amount of time, the longer you leave it, the less likely the contemplation will be able to stand up to scrutiny by the court. If you leave it 30 years to marry, the courts are unlikely to look favourably upon this contemplation clause.

I have this clause in my Will, but I am with a new partner since then, is this clause still valid?

• When it comes to the Contemplation of Marriage Clause, there is a restriction in that the Will is drafted with sole reference to the future spouse/civil partner that at the time the Will was made that you intend to be married to; this being set out in s18(4) of the Wills Act 1837.
• If you have a new partner that you intend to marry, the clause from the first contemplation is invalid. A rewritten Will with a Contemplation Clause to the new specific person will need to be written for the clause to be valid.

What happens if I didn’t manage to include this clause/ revoked my Will?

• We have an excellent article explaining what happens when you die without a Will and if you have revoked your Will via marriage accidentally, this article here should help give you some more context.

Divorce/Dissolution

Just as in real life as under Succession law, divorce is never straightforward. While we have just seen how marriage can affect your Will, divorce also has its own unique effect on the Will. While it may seem logical that divorce would invalidate a Will, it interestingly only has the effect of treating your ex-spouse as if they died on the day of the divorce, as seen under Section 18a of the Wills Act 1837.

What would being divorced mean for my current Will?

• Because of the divorce, even if your former spouse survived you, the Will treats them as if they died the day of the divorce and therefore cannot inherit from you by virtue of once being married to you. If your Will states they are to receive ‘X’ from you, they are unable to because under Succession Law they have died before you so any gift to them will pass on to the next person who is entitled.

However, unlike in marriage, there is no ‘contemplation of divorce’ clause, so something to watch out for is that until the Decree Absolute has been issued and the divorce officially completed, the other person is still for the purposes of your Will and Succession Law considered to be your spouse with all the entitlements that brings.

Okay so we know that divorcing means that the Will treats the ex-spouse as having predeceased and does not revoke the Will; what if you are separated but would still wish your spouse to benefit or act as an executor or trustee even after the divorce is finalised?

There is a clause for this in Will Writing where you express contrary intention to Section 18a of the Wills Act 1837, not too dissimilar to the contrary intention used in the marriage section.

 What does stating this contrary intention do exactly?

• ­By stating a clear contrary intention to Section 18a you are declaring that when your Will comes into effect, the presumption of divorce treating the ex-spouse as predeceased is ignored for the purposes of your Will; that it is your specific intention that they retain the ability to act and benefit as any other individual would under your Will.

Judicial Separation

An unfamiliar area of family law when it comes to the realm of Will Writing, it is more common to have clients who are either married/civil partners, divorced/dissolved or single/cohabiting. So, what is Judicial Separation and how does it affect writing a Will?

Judicial Separation, or otherwise known as a deed of separation does not have the same effect that a divorce has under s18a of the Wills Act 1837. While it is a legal form of separation where the partners have officially separated and have proven they are not cohabiting, it has rather unique rules when it comes to affecting the estate of a client depending particularly on one of two conditions: dying with a Will or dying intestate.

Example 1: Dying with a will that still benefits the spouse you’re separated from:

• If you are to leave a Will that still benefits the spouse you are separated from, they still retain the right to that benefit.
• As we saw in the previous section about Divorce, until a Decree Absolute is issued the spouse is still deemed as your spouse under succession law and is not excluded from benefiting under Section 18a.
• If you wanted them to retain their benefit while completing the divorce, this would be the time to express to contrary intention set out in the previous section.

Example 2: Dying Intestate:

• The simpler of the two examples, while dying with a Will creates a situation where you are deemed to still be married to the estranged spouse, dying intestate has an alternative take.
• Under the rules of Judicial Separation when dying intestate, for the purposes of intestacy the course of action is more akin to divorce. Dying without a Will while Judicially Separated will dictate for the purposes of inheritance that the estranged spouse has predeceased the intestate.

Conclusion

In review, we can see each unique and interesting way that different areas of Marriage/Civil Partnership, Divorce/Dissolution and Judicial Separation can have a remarkable effect on your Will and hopefully we have made it clear how instrumental understanding how your marital status affects your Will is.

If you are thinking of having your Will written or realised that a change needs to be made to your Will as a result of this article, please feel free to contact a Society of Will Writers Accredited Will Writer to assist you. If you would like to find one nearest you, please visit our find a member page or call the office on 01522 687 888.