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HCR Law Events

8 January 2024

The importance of a will prior, during and after a marriage or civil partnership: your questions answered

Can I prepare a will to include my spouse or civil partner to ensure that they benefit from my estate?

A will is a legal document which helps with organising your estate after your death and ensures that your assets and possessions are given to those you wish to benefit. Reviewing your estate – your assets and liabilities – throughout the key stages in your life is important, and reflecting this in a will safeguards your decisions and keeps your wishes up-to-date and valid.

If you’re looking to get married or enter into a civil partnership, this is an ideal time to review your will. Did you know that marriage and civil partnerships revoke your will? However, it is possible to ensure that your will is not revoked on marriage or civil partnership, through drafting one “in expectation of marriage or civil partnership” to a certain person.

This is a sensible precaution once engaged or a date has been set, as this then means that your will is up-to-date. If you do not prepare a will “in expectation of marriage or civil partnership” and then forget to do so once married, your partner will benefit from your estate – but the benefit will be limited to the intestacy provisions and may mean that they do not receive what you had expected them to.

If you do not make these provisions in your will and you pass away before the marriage or partnership, your future partner would not benefit from your estate as they will not inherit under the intestacy provisions. This highlights the importance of making your will “in expectation of”.

What happens if I am going through a divorce or dissolution and have a will leaving my estate to my soon to be ex-spouse?

If you are going through divorce proceedings or dissolution then this is another key point to review your will. It may be that your will leaves your estate to your spouse or civil partner; if you die before the decree absolute or dissolution, your estate will still pass in accordance with your will, and would still then benefit what was your soon to be ex-spouse or civil partner. A review of your will at this stage can ensure that your estate still passes to those you wish to benefit.

However, it is worth noting that your ex-spouse or civil partner may still be able to bring a claim against your estate if you have amended your will but are not yet divorced or the civil partnership hasn’t yet been dissolved. That said, this claim may not be successful and depends on the circumstances involved. Reviewing your will and amending as necessary is definitely a preferred option to leaving it as was, and your ex-spouse or civil partner inheriting without having to bring a claim.

Once I am divorced, what happens to my current will?

If you have obtained your decree absolute or dissolution, this does not revoke your current will. Instead, it is treated as if your ex-spouse or civil partner died on the date of the decree absolute or dissolution and therefore they will not inherit.

The remaining wishes in your will not referring to your ex-spouse or civil partner will stand. This is still a sensible time to review your will as your estate may be very different now than to before your divorce or dissolution, and you may now have additional or new people involved in your life that you would like to benefit.

This article was jointly authored by Lauren Modrekelidze and Emma McCarthy.

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About the Author
Emma McCarthy, Partner

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