We appreciate that when going through a relationship breakdown, making a Will must seem like the last thing that you want to do. However, it is vitally important that if you are separating from a spouse, that you take expert legal advice regarding your estate. Estate planning can prevent unintended consequences for your loved ones in the event of a death during separation.

Separation can come in many different forms, it might be that you and your spouse are living separately whilst the divorce proceedings are ongoing, or it might be that you are still living in the same home but living independently. The important thing to understand is that during this time, you are still legally married.

We set out below some important information that you need to be aware of if you are going through separation:

• If you have an existing Will
• If you do not have a Will
• Jointly owned property and assets
• Summary

If you have an existing Will

If you have a Will in place already, it is likely that your spouse will feature in some way, whether it is as an “Executor” or a “Beneficiary” of your estate.

An “Executor” is the person who will have the legal responsibility to administer your estate, this means that they will collect in all your assets (property, savings etc), use those funds to pay any debts and distribute the funds in accordance with your Will. It is therefore essential that this person is someone that you trust. Careful consideration needs to be given to who should be your Executors, it may be appropriate to appoint someone other than your spouse if you are going through separation.

A “Beneficiary” is someone who is entitled to benefit from your estate in some way. It is likely that your spouse could be a beneficiary of your Will. The risk is if you pass away whilst separating, your Will is still valid, which means that your ex-partner would still benefit from your estate, irrespective of whether you are separated or not. It is therefore very important that your Will is reviewed as a matter of urgency.

If you do not have a Will

In the event that you separate from your spouse and you do not have a Will, if you were to pass away then the Rules of Intestacy will apply to your estate. The Rules of Intestacy will determine who is entitled to inherit from your estate.

Essentially in the context of a marriage or civil partnership:

• If you die whilst being married to your spouse or civil partner and you have no children, all of your estate will go to your spouse or civil partner. (Again, this will apply regardless of your separation as in the eyes of the law, you are still legally married to your spouse or civil partner).
• If you die whilst being married or in civil relationship with children, the first £322,000 of your estate will go to your spouse or civil partner, along with any of your personal possessions. The remainder of the estate will then be divided, with your spouse or civil partner receiving 50% and any children receiving the remaining 50% in equal shares.

It is therefore very important that you consider making a Will to avoid your estate passing in a way which you do not intend.

Jointly owned property and assets

You also need to consider any assets that you own jointly with your spouse when separating. This could be your family home or any joint bank accounts. This is because your Will deals with assets in your sole name. If you own joint accounts or investments with someone, then usually these accounts or investments will pass to the surviving joint owner irrespective of the terms of your wills.

Most married couples own their properties as “Joint Tenants”. This means that when the first co-owner dies, their share of the property automatically passes to the surviving joint owner. The surviving spouse then owns 100% of the house in their sole name.

This is why those going through separation must consider how they own their property with their spouse as the main asset in the estate could be lost to the spouse even if they prepare a Will.

What options are there available to prevent this?  You can change how you own your property, to “tenants in common”. This means that you and your spouse would each own a distinct share in the property. Each co-owner can then leave their distinct share in the property in their Will to whoever they wish. This means that if you sadly passed away during separation, your share of the property could pass under your Will, rather than pass automatically to your spouse.

Summary

Here at Ridley & Hall we are passionate about educating the community about the need to make a Will and having regular Will reviews. This is particularly important to anyone going through the process of separation and we encourage all to get legal advice to ensure that the most suitable Will is put in place.

We can offer professional legal advice in relation to Wills and estate planning. Please do not hesitate to contact our friendly and approachable team on our freephone 0800 860 62 65 for further information or to arrange an appointment.

Lucy Pickles – Solicitor