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Divorcing? Beware the Death Trap!


Divorce is not the end of the world; death is.  If you are divorced – or are considering a divorce – then there are three things that you need to consider in relation to your estate (your assets and debts) if you die.

1. What Do You Own?

If you jointly own a property and you are married or in a civil partnership then it is likely that you own it as joint tenants.  This means that if one of you dies the other will inherit the property automatically under the “survivorship” rules.

Sometimes couples own property as tenants in common (particularly if they have invested unequally).  This means that if either dies then their share passes according to their Will (or according to the intestacy rules if there is no Will).  If you are divorcing one of the first pieces of advice that you will receive, if you are a joint tenant, is to sever the joint tenancy so that you become tenants in common.

The survivorship rule can lead to some tragically difficult inheritance cases.  For example; A is married to B and they have two young children.  A is the victim of domestic violence and obtains an injunction to remove B from the family home.  B moves in with another woman and makes it clear that he wants no more to do with A or his children.  A is diagnosed with cancer and passes away very quickly, before even being able to take legal advice about a divorce or make a Will.  Her only asset is her half share of the property which passes automatically to B.  A and B’s children live with their aunt and B makes it clear that he has no intention of supporting them.  The children, through their aunt, must then bring court proceedings within 6 months of a grant of probate in order to bring their mother’s half share of the property back into the estate for the purposes of making a claim. Much of the estate is spent fighting the case against B so that the children, even though they win, receive very little.

2. Who Gets What?

While you are going through a divorce, you remain married until the divorce is made absolute.  So if you have made a Will during your marriage in which all of your estate has been left to your spouse and you die before the divorce is made absolute, your spouse will still inherit your estate under the terms of your Will.  If you have not made a Will, the rules of intestacy will provide for your spouse and unless your estate is very substantial they may inherit everything.

Sometimes people think that they do not need to make a Will – that the rules of intestacy will make adequate provision.  However that is often not the case.  By making a Will you are able to say who should administer your estate (be the executor) and make it clear about who is to inherit; you may wish to leave specific items to a particular friend or relative .  A Will also enables you to appoint a guardian to look after minor children and to choose the age at which your children inherit.

3. How to Avoid Post-Death Disputes

No one wants their death to cause a family dispute.  Unfortunately many people do just this by failing to plan for their death and to communicate their wishes to family members.

The recent high profile family war involving the children of the late Lord Lambton is a stark reminder.  Three of the daughters of the late conservative defence minister were said to be “bitterly heartbroken” that a row over his 12 million pound estate reached court 7 years after his death. Lord Lambton resigned from the government in 1973 after being caught with a prostitute.  He moved to Italy and spent the last 30 years of his life there.  When he died in 2006 aged 84 his estate was valued at  £12.1m.  His entire estate was left to his son and heir Edward Lambton the 7th Earl of Durham, but three of his daughters, Lady Lucinda Lambton, Lady Beatrix Neville and Lady Anne Lambton issued court proceedings in Italy on the basis that under Italian law all six of his children would be entitled to a share of his estate.  Their brother, the 52 year old Earl, launched High Court proceedings in London denying their claims and arguing that any dispute should be heard in England.  That dispute has now been resolved and an out of court settlement reached.

That particular dispute, because of the sums involved, may have been inevitable.  For most families the amounts concerned are usually very much smaller which can make it financially extremely risky to bring court proceedings.

It is rarely worth arguing over an estate of, say, £50,000.00 because the legal costs of the parties involved can easily swallow up the estate.  So it becomes all the more important from a practical point of view to understand who is entitled to inherit your estate, what they can expect to receive and (if you plan to exclude anyone) to explain and justify that decision in order to try to prevent litigation after your death.  In England and Wales, children do not have the right to inherit a share of their parents’ estate come what may.  You have the right to leave all of your money to the cat and dog home should you choose!

Although no one likes to contemplate their own death, to make a Will is in fact a practical affirmation of care for your loved ones and as such should be reviewed following any significant change in your life.

sarah-young

If you would like further information about inheritance disputes please contact Sarah Young at Ridley & Hall solicitors: on 01484 538421, 07860 165850 or by e-mail.  Sarah Young is a Partner at Ridley & Hall.  She specialises in contentious probate.  She has a record of bringing the most complex cases to a successful conclusion.

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