13 September 2019

Should I change my will if I separate from my husband?

Surprisingly, it could be more important to change your will if you separate than if you divorce. However, lets go back to the beginning. If you make your will before getting married then in most cases that will is cancelled by your marriage. The only exception is if you state in the will that you are making it in contemplation of marriage to a particular person and you go on to state that this marriage will not cancel the will.

Moving on to separation and divorce, neither of these events cancel your existing will. Therefore, if you and your husband have mirror wills where you leave everything to the survivor of you, then these wills continue to be valid when you separate. If you get divorced then on the date of the decree absolute your husband is treated as having died before you. The will is still valid but any gift to your former husband will fail because he has “died”. It sounds rather brutal but it ensures that once you are divorced, even if you do not change your will, your estate will not pass to your husband. In this case, the substitute provisions will apply. In many cases this might mean that your estate will simply pass to your children but you need to be careful here. Many “mirror” wills have further provisions so that your estate passes to beneficiaries from your family and your husband’s family. You may well want to change such a will .

If you separate but have not divorced then you are still married. If you have a will leaving everything to your husband then that is what will happen if you die before him.

The key here is that whether you separate or divorce you should certainly review your will. You might want to appoint different executors and you will probably want to remove your husband as a beneficiary. You may also want to consider the way that you and your husband own your financial assets, particularly any jointly owned assets.

It is good practice to review your will regularly but certain events such as separation and divorce are triggers for reviewing your will. We can advise you as to how best to protect yourself and your family and ensure that your financial assets pass to your chosen beneficiaries on your death. We can also work together with lawyers from our Family Law Team so that we can offer you a more holistic legal service. They can prepare separation agreements and advise you about any financial agreement and we can ensure that your will fits with these arrangements.

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