Why Separating Couples Need a New Will: A Guide to Protecting Your Future
The end of a relationship turns your world upside down. You’re trying to keep a semblance of normality while hiding your emotional struggles and financial uncertainties for the sake of your children, and juggling all the things that you have to manage when life throws a curveball at you.
At Evolve Family Law, our divorce solicitors get that, but because we have your back, we’ll suggest that you make a new Will. In this guide, we explain why, after a separation, you shouldn’t wait to make a new Will and how our Will lawyers can make the process of writing a new Will as quick and stress free as possible.
Contact Evolve Family Law for a new Will
Separation, the Law and Wills
Your separation from your husband, wife, civil partner, or unmarried partner doesn’t:
- Cancel your current Will
- Exclude your ex-partner from inheriting
- Protect your children financially
Only a new Will does that.
Here’s how the law works if you are married or in a civil partnership, or if you were in an unmarried relationship:
- If you’re married or in a civil partnership
You might assume that separating means your spouse or civil partner no longer inherits under your Will. Sadly, that’s not how the law works.
Until you’re legally divorced or your civil partnership is formally dissolved, your spouse or civil partner is still in a legal relationship with you and will inherit if you named them in your Will or will inherit under the intestacy rules if you haven’t made a Will.
Your Will isn’t changed, and your assets aren’t suddenly protected for your children or extended family if you start divorce proceedings or dissolution of civil partnership proceedings.
Your Will is only affected by your divorce or dissolution of civil partnership after you have received your final order of divorce or dissolution.
No-fault divorce proceedings take a minimum of six months to complete because of court rules. Often, the timescale is longer, as it can be in your financial best interests to delay getting your divorce final order until you have secured a financial settlement. However, while you protect yourself and wait for your divorce to come through, your family is vulnerable, as your estranged spouse can still inherit under your Will or act as your executor. If the worst were to befall you, your spouse could still control your estate and make decisions you’d never want them to make now.
- If you’re cohabiting
You might assume that because you’ve separated, your ex-partner has no claim. But if you named them in your Will as a beneficiary or as your executor, they stay in your Will until you change it.
If you never made a Will at all, or didn’t include your ex-partner in your Will, then your ex-partner won’t inherit under the intestacy rules or the Will, but your children may not be protected either. That’s because the intestacy rules aren’t fit for purpose and don’t meet the needs of modern families.
A new Will allows you to protect your loved ones and reduces the risk of your ex-partner being able to challenge an existing Will or the intestacy rules successfully and argue that they should get a share of your estate. A new Will puts you back in control and protects your family.
Why Your Old Will No Longer Fits Your Life
When you wrote your old Will, you will have anticipated a shared future with your estranged spouse or ex-partner and probably would have left everything to your partner, named them as executor, and trusted them to make a Will and leave what remained of your estate and their own assets to your shared children or to make fair estate planning choices if you have a blended family.
Life looks different now because your priorities, relationships, and plans have changed. They will have different priorities and plans as well.
Unless you update your Will, the law will treat your separated ex as if nothing has changed.
Whilst you may want time to ponder, your ex could have changed their Will. There is no obligation to tell you that they’ve done so.
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Why Will Timing Matters More Than You Think
When you’re separating, life feels like it’s in limbo. You’re not together, but you’re not divorced. You’re not sure what the future looks like. You’re trying to keep going despite the onslaught of trying to agree on parenting arrangements, getting the family home valued or taking time out of work and childcare responsibilities to check out your mortgage options as a single parent.
However, a new Will matters now — not later.
- Your ex could inherit everything
If you died tomorrow without a Will and your spouse is still legally your spouse, they’re still first in line to get the lion’s share of your estate under the intestacy rules. If you do have a Will, the likelihood is that they are in it.
This applies even if you’ve been separated for years, have been living completely separate lives, have started a new relationship, and have children.
- Your children may not be protected
If you want your children to inherit directly, or you want money held in trust for them, you need a Will that says so.
With your existing Will, you may be relying on your ex-partner to do the right thing and give the money inherited under your Will to the children.
If your ex-partner doesn’t do the right thing, then your children could be fighting your ex in an inheritance dispute for what should rightly be theirs because it is what you would have wanted if you had realised just how vulnerable your children were under Will and intestacy rules.
- Your new partner may be left with nothing
If you’ve moved on, any new unmarried partner has no automatic rights to a share of your estate. A Will is the only way to protect them.
- Your estate could end up in a long court inheritance dispute
Separation already brings enough conflict. A Will reduces the risk of your ex, your children, or a new partner bringing a claim against your estate, arguing that either your old Will or the intestacy rules don’t make reasonable financial provision for them.
- You get peace of mind
You’re dealing with enough stress with your separation. A new Will means you have one less thing to worry about.
If you are worried that you will have to get another new Will when your divorce or civil partnership dissolution is finalised, then don’t worry; you won’t. Your Will solicitor will draw your Will up so it won’t need to be changed again when you get your final divorce order.
What a New Will Lets You Control
A Will isn’t just about your money. It’s about protecting the people you love.
Here’s what you can decide with a new Will:
- Who inherits — and who doesn’t
You choose exactly where your money, home, and belongings go. A Will lawyer can explain your options and how best to structure your Will to reduce the risk of inheritance disputes and claims.
- Who manages your estate
You can remove your ex-partner as your executor and appoint someone you trust. This could be a sibling, a longstanding family friend, your Will solicitor or a combination.
- Who looks after your children
If your ex has no interest in caring for your joint children or you have concerns about their ability to look after the children on their own, then you can appoint a testamentary guardian for your children in your Will. Your family lawyer and Will solicitor can explain how the appointment in your Will works.
- How your children inherit
You can set up trusts in your Will so children inherit at the right age, with the right support. If you and your ex are separating or divorcing amicably and you trust them to put your children’s needs before their own, then you could appoint them to act as one of the trustees.
- How to protect your share of the family home
If you still own a property together, your will can protect your share for your children. A Will lawyer will check whether a jointly owned family home is held as joint tenants or tenants in common. This legal distinction is important because with a joint tenancy, your share of the family home will automatically pass to your co-owner, regardless of what your existing Will or the intestacy rules say. Your Will lawyer can solve that problem for you by converting the family home from joint tenants to tenants in common, so your share of the property passes to your loved ones under your new Will.
- How to protect a new partner
You can give a new partner (who may have been living with you for years by the time you and your ex decide to start divorce proceedings) the right to stay in the family home, or leave them a specific gift, without reducing your children’s inheritance.
A new Will gives you choices. Separation takes a lot of your control away, but a new Will gives you a semblance of control and the knowledge of what your life will look like in the future once you have fully separated from your ex.
Why Do You Need a Will Solicitor For Your New Will
Families often have:
- Joint homes with uneven deposit contributions
- Joint property ownership with confusion over whether the property is held as joint tenants or tenants in common, and what that means for you and your children
- Blended families and children from previous relationships or first spouses with spousal maintenance claims who therefore have potential inheritance claims
- Family businesses
- Inherited property
- Complex assets, including investments, second homes and overseas property
- Assets that may not form part of the estate, such as some types of life insurance
- Disputed ownership claims, such as where you are claiming that you have a beneficial interest in a property in the legal ownership of your unmarried partner
These situations make Wills even more important. Without one, the law can divide your estate in ways that are unfair or don’t meet the needs of your family. A Will lawyer can navigate all the complexities and get a new Will sorted out that meets your changed needs.
What Happens if You Don’t Make a New Will
Here’s the part most separating couples don’t realise.
- If you have a Will
Your ex-partner remains in it until you remove them, or you finalise the divorce, or dissolve the civil partnership. An unmarried ex-partner stays in your Will indefinitely.
- If you don’t have a Will
The intestacy rules decide who gets what from your estate. Your wishes don’t have any legal sway. If you’re still legally married, your spouse inherits first.
This is why so many families end up in painful disputes after a death. A new Will prevents that.
How to Update Your Will When You’re Separating
You don’t need to wait for the divorce to finish. You don’t need to have everything agreed. You don’t need to know exactly what the financial settlement will be.
You just need a Will that reflects your life as it is today.
Here’s what the process usually looks like:
- You talk to a Will solicitor who listens to what you want
You explain your situation, your worries, and what you want to protect. You’re not rushed. You’re not judged. You’re heard.
The advantage of talking to a Will lawyer at Evolve Family Law is that if you have already given a lot of financial information to your divorce solicitor, they will be able to look at this information and save you from having to repeat it all.
- You get clear Will advice
You’ll understand your options, the risks, and the best way to protect your children and assets.
- You choose who inherits
You decide what goes to your children, family, or new partner.
- You choose who’s in charge
You appoint executors you trust.
- You sign your new Will
Once it’s signed and witnessed, it’s legally binding. It can be stored free of charge at Evolve Family Law if that’s what you would like us to do.
- You get peace of mind
You know your estate planning wishes will be followed, whatever happens next. You can get on with sorting out parenting plans and thrashing out a financial settlement.
Your Will Experience at Evolve Family Law
Clients often tell us that a new Will isn’t a top priority when they are separating. That’s because they hope something won’t happen to them and because they don’t think they can cope with the hassle of talking about estate planning with another solicitor.
Here’s what some of our clients say about their Will experience at Evolve Family Law:
- Chris Strogen was an excellent choice, being an amalgam of the very best characteristics of a traditional, empathetic, knowledgeable lawyer backed by the latest appropriate technology. The work was undertaken expeditiously (in a couple of days) and at a very reasonable charge.
- Chris was highly responsive and effective, providing expert legal advice that fully addressed my changing circumstances. Great service!
- In a very professional but friendly manner, Judith steered us through the many options for both the Wills and LPA documents, and we feel very comfortable that the final documents will serve our family well, as and when they are needed. (Hopefully not too soon).
You deserve that same peace of mind.
Contact Evolve Family Law for a new Will
Frequently Asked Questions on Wills and Separating Couples
Do I need a new Will even if I’m only separated, not divorced?
Yes. Separation doesn’t change your Will. Your spouse is still legally your spouse until the divorce is final. They can still inherit unless you change your Will.
What happens if I don’t have a Will at all?
The intestacy rules decide everything. Your spouse may inherit most or all of your estate. Your children may not receive what you want them to. A Will puts you back in control.
Can I stop my ex-partner from inheriting?
Yes — but only by making a new Will and by taking specialist legal advice on how to minimise the risk of them bringing a claim for a share of your estate because of their status as a spouse, former spouse or dependant. Separation alone doesn’t remove a spouse or unmarried partner from your Will.
What happens if we still own the house together?
You can change how you own the jointly owned property (for example, from joint tenants to tenants in common). You don’t need your ex-partner’s permission to convert ownership from a joint tenancy to tenants in common.
Can I protect my new partner?
Yes. A Will is the only way to make sure an unmarried partner is provided for. Without one, they may receive nothing. If you are planning to remarry, you need to speak to a Will solicitor about how your second marriage will affect any existing Will.
When should I update my Will?
Now. The moment you separate, your old Will is out of date. You don’t need to wait for the divorce to be finalised to give Will instructions and protect your family. New priorities mean a new Will.
Your Next Steps
If you’re separating, you’re already feeling under pressure. Updating your Will shouldn’t add to that. It should make life feel safer. You should be proud that you are on top of your paperwork and protecting your family.
At Evolve Family Law, our Will solicitors will get on with the job with the minimum of fuss and normally at a fixed fee. Here’s the link to our fixed fee Will charges. Call us for the peace of mind you and your family deserve.
