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Divorce and Separation – A Key Time to Update Your Will 

August 2, 2023 By Nicole Donnelly Estate Planning

Finalising a divorce is a key time to update your personal affairs.  

Your Will should be reviewed and updated at this time to ensure your assets are left to the people you intend and can be administered as per your wishes when you die. Updating your Will should give you the peace of mind that your loved ones are provided for and the process of dealing with your estate when you pass away is as straightforward as it can be.  

How the Law Operates with Ex-Spouses or Civil Partners

The Succession (Scotland) Act 2016 updated the law regarding how a divorced person’s property passes when they die. For inheritance purposes, the law now treats the former spouse or civil partner as having pre-deceased the individual who made the Will. This means that any provisions made for an ex-spouse within a Will written before getting a divorce will no longer be followed. It is important to note divorce does not revoke a Will and it does not mean a Will from prior to marriage comes back into effect.

Couples that are separating should be aware that this change in the law does not apply to separated couples and only applies when the divorce has been finalised. This means that there may be a period of time prior to the divorce finalising when provisions made in favour of a spouse will still be followed if you were to pass away. Reviewing your Will at this juncture is therefore advised to ensure your assets are left to those you intend.  

The Impact of Divorce on Will Provisions Made for Children

For most individuals, their Will often contains provisions for children. Notably, in Scotland children are only entitled to inherit assets left for them when they reach the age of 16. For divorcing couples, if a spouse were to pass away leaving assets for children in their Will, the inheritance would be paid to the surviving parent who is potentially the divorced spouse. Understandably, divorcing couples may not wish for their ex-spouse to have control over money or assets left for their children if they are under 16 years of age. Reviewing and amending your Will to make alternative provisions such as setting up a Trust in this sort of situation may therefore be necessary.  

Alternative Provisions

We recognise that all cases differ, and some individuals may indeed desire their ex-spouse benefits from their estate when they pass away. Some divorced couples may also wish for their ex-spouse to act as an executor or guardian. Our experienced Estate Planning team can make sure the appropriate provisions are put in place to facilitate these wishes are met.  

Our Family Law and Private Client teams are highly experienced in dealing with the impact of divorce on estates. They can advise and put provisions in place to safeguard your assets and ensure your wishes are met when you pass away.

Contact Our Estate Planning Team

Make an appointment with Jones Whyte and our experienced Estate Planning Team will help you make a Will that reflects your wishes and ensures those who you want to inherit from your Estate do.

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