HM Insights

"Divorce Day" highlights the need for up-to-date succession arrangements and Wills

Today is Divorce Day, the name given to the first working Monday of the New Year due to the surge in enquiries which divorce lawyers experience. Whether due to the stress of the holidays or individuals' desire for a new start in the New Year, it is again expected to see many people seeking separations.

It is common that couples (whether married, civil partners or cohabitees) will have arrangements in place leaving their assets to their partner upon death. Upon seeking a separation, divorce or dissolution, these should of course be reviewed. It can take some time for agreements to be reached and for separations to be finalised and, should the worst happen, there may be unintended consequences if you have not yet considered changing your succession arrangements.

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What does the law say about inheriting from a former spouse or partner?

Prior to the new Succession (Scotland) Act 2016, divorce or dissolution of a civil partnership would have had no impact on a person's Will in Scotland. Accordingly, if following a divorce or dissolution an individual died and their Will appointed their former spouse/civil partner as executor or left a legacy in their favour, the surviving former spouse could still act/inherit.

This was, of course, often not the intention!

The new Act provides that if a deceased's Will leaves assets to their former spouse (or appoints them as executor) as long as certain conditions are met the spouse is treated as having predeceased their former partner and the appointment/bequest falls.

Of course this only comes into effect following a divorce or dissolution (rather than a separation) and so it remains essential for couples to review their Wills as soon as possible following the separation. In addition, these provisions, although effectively removing the former spouse from the Will, do not otherwise change the terms of the Will which should still be reviewed to ensure that it is suitable and reflective of your intentions.

Even if an individual seeking a divorce or dissolution updates their Will following their separation but before the finalisation of their divorce/dissolution, it should be noted that until a divorce/dissolution is finalised, a spouse will still be entitled to legal rights (a share of the net moveable estate) unless these are otherwise discharged. This should therefore be considered when the new Will is being put in place.

If an individual who is seeking a divorce or dissolution currently does not have a Will, they should bear in mind that under the laws of intestacy, their spouse will be entitled to a share of their estate – even if they are separated at the time of their death. The entitlement of the survivor could be significant and amount to the entire estate, depending on circumstances such as the value of the estate and the other surviving family. Following a divorce or dissolution, these rights are lost and the estate would then be left to other beneficiaries according to intestate rules which may not reflect the individual's wishes.

What about cohabitees?

For cohabitees, under the current succession rules there is no automatic entitlement to receive anything from their partner's estate whether there is a Will in place or not. However, if one cohabitee dies without a Will, their surviving partner can make a claim to receive a share of the estate (this claim cannot be made if a cohabitee dies with a Will in place). This option would not be available if the couple have separated but former cohabitees should still review their arrangements, consider putting Wills in place, review how title is held to any joint property and check any nominations of pensions or employee benefits.

If former cohabitees have put Wills in place in favour of each other and one of them dies before this has been changed, the Will terms would still stand and the survivor would still inherit under the Will of their former partner.

Make your Will a priority

In short, although there will be much to consider and arrange when separating from a partner, your succession arrangements should be one of the priorities to ensure that any untimely death does not result in an unintended inheritance for a previous partner.

Get in touch

Given all of the above, the only way to ensure that your estate is divided in accordance with your wishes and include the people you want to benefit - especially after a separation - is to make sure your Will and other arrangements are up to date. 

Our team is experienced in all aspects of making a Will and succession/inheritance issues, and works closely with our family law team to offer the full range of advice you need in difficult circumstances. If you'd like assistance in sorting out your affairs, please get in touch.

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