The effect of divorce on a will

It has been said that the only certainties in life are death and taxes. From this you can take one piece of advice: make a will.

Divorce proceedings result in several changes of which both parties are aware and, worryingly, changes of which they are often unaware. One of the most significant is the effect that a divorce will have on a will.

Making a will is the most critical element of financial and wealth planning. If an individual dies intestate, this renders any intentions that they might have had regarding what happens to their assets once they die essentially undocumented. It is crucial to know that the situation changes upon divorce.

Indeed, making a will forms part of any future planning and, as divorces can take a considerable length of time to be finalised, the status of any will should be considered at the outset of any divorce proceedings. It is crucial to take the required safeguards to avoid any issues arising from the unexpected death of either party. In the eyes of the law spouses do not cease to be married until the decree absolute has been granted. Therefore, if one party dies intestate during proceedings, the other will inherit a large part of that party’s estate, or all of the estate if there are no children.

If an individual has a will in place, then upon the decree absolute being granted, the will remains effective as though the former spouse has predeceased the individual making the will. Therefore, since the gift takes effect as if the spouse has died at the date the decree absolute is granted, any such gift will fail.

Furthermore, should a former spouse be an executor of an individual’s will, then this will be automatically revoked once the decree absolute is granted, unless a specific provision is included in the will for the executor to continue.

It is also imperative that, when going through the divorce process, the method of ownership of properties is determined. If the parties are beneficial joint tenants, then despite being in the process of divorcing, one individual’s share of the property will pass to the other until the decree absolute has been made.

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