Can a Separated Spouse Inherit?

Dec 12, 2023   ·   5 minute read
Can a Separated Spouse Inherit?

Our private client and Will solicitors are asked the question ‘Can a separated spouse inherit?’ The quick answer is yes or maybe. That’s why if you are thinking about a separation or divorce you need to talk to a Will and estate planning solicitor as well as to a family lawyer. 

In this article, our Will solicitors explain why you need a Will or a new Will if you are going through a family separation. Our specialist lawyers can help you with all your private client needs, including writing a Will for you or checking if your existing Will needs amending, because of your new family circumstances. 

For expert Will and estate planning advice call our team or complete our online enquiry form 

Who inherits if you are separated  

If you are separated from your husband, wife, or civil partner then you are still in a legal relationship with them until the relationship is dissolved by your securing a final order of divorce or the dissolution of your civil partnership. 

A gift in a Will to a separated spouse or civil partner is valid despite your separation. 

If you have not made a Will your separated husband, wife, or civil partner is one of your next of kin and they will be entitled to a share of your estate under the intestacy rules. 

The intestacy rules set out who inherits your estate where there is no Will. The rules say: 

  1. If there are surviving children or grandchildren or great-grandchildren and the estate has a value over £322,000, the spouse or civil partner will inherit: 
  • All the personal property and belongings of the deceased and  
  • The first £322,000 of the estate and  
  • Half of the remaining estate

 2.If there are no surviving children, grandchildren or great-grandchildren, the spouse or civil partner will inherit: 

  • All the personal property and belongings of the deceased and  
  • The rest of the estate  

Whether there is a Will or if the intestacy rules decide who gets an estate, some people can challenge the provisions in a Will or the intestacy rules distribution. They can do this if they do not think that the Will or the intestacy rules make reasonable financial provision for them by making a claim against the estate. 

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Joint property and separated spouses 

Many married couples jointly own their family home. If a house is owned as joint tenants the surviving partner automatically inherits the deceased’s share of the house. That is the case even if the deceased was separated from their husband or wife or even if the deceased made a Will leaving their estate to their children or charity. 

If you do not want your husband or wife to inherit under the joint tenancy survivorship rule then your family law solicitor can check to see if you own your family home as joint tenants. If you do own the property as joint tenants then you can sever the joint tenancy. That means the property continues to be jointly owned but you own it with your spouse as tenants in common. If you predecease your spouse your share of the property will pass under the terms of your Will. It is important to check the terms of any existing Will and to change it if necessary. That’s because most married couples have Wills that leave most of their estate to their spouse so severing the joint tenancy will only work if you also change your Will.   

If you do not have a Will then intestacy rules will apply to your estate so it is important to get a Will solicitor to prepare a Will for you if you do decide to sever the joint tenancy. 

One point to note is that if your separated spouse predeceases you after you sever the joint tenancy then you will not automatically inherit their share of the property under the survivorship rules. Instead, your estranged spouse’s share of the property will pass under their Will or intestacy rules. 

Making a Will if you are separated 

If you are separated from your husband, wife, or civil partner it is best to change your Will straight away rather than wait until after your divorce comes through. That’s the case even if your separation is amicable. For example, you may want to change your Will to leave your estate in trust for your young children. If the separation is amicable, you could appoint your estranged wife as one of the trustees of your estate. If your estate is left to your wife directly and she remarries then her second husband could inherit her estate (including the money and assets she inherited from you) and your children could lose out. 

A Will solicitor can help you write a Will that reflects your new family circumstances and reduces the risk of a person making a claim against your estate. For example, they may recommend that your Will includes a discretionary trust. There are lots of options and estate planning choices that a specialist Will solicitor can talk you through.  

For expert Will and estate planning advice complete our online enquiry form