Divorce is a significant life event that can have a profound impact on various aspects of your life. These include your financial and legal affairs. One crucial area that often gets overlooked during the divorce process is updating your Will. Many people fail to realise the importance of revisiting their Will after a divorce, which can lead to unintended consequences and potential complications for their estate. In this article, we will explore the reasons why updating your Will after divorce is essential and the potential implications if you fail to do so.
The Legal Landscape: Succession (Scotland) Act 2016
In Scotland, the rules surrounding Wills and divorced couples are governed by the Succession (Scotland) Act 2016. This Act, which updated the 1964 act of the same name, acknowledges the increased prevalence of divorce in modern society. It introduced specific provisions to address the implications of divorce on Wills. That’s why it is important to update your testamentary wishes.
Immediate Impact on Your Will
There is an immediate impact on your Will when you divorce. A different interpretation will be placed on your Will without any physical changes being made. In most cases, your ex-spouse is treated as if they had died before you. For example, if your Will simply stated, “I leave everything to my spouse,” your estate would fall into intestacy. A professionally drafted Will is unlikely to contain such a simplistic provision. However, it is essential to review your Will carefully to understand the impact your divorce has had on it.
Executor and Beneficiary Considerations
If you named your ex-spouse as the executor of your Will, their role becomes void upon divorce. Unless you have named a joint or substitute executor, an application must be made to the courts to appoint a new executor. This can be a time-consuming and costly process. Similarly, if your ex-spouse was designated as a beneficiary, their entitlement will cease because of the divorce.
Retaining Your Former Spouse as Executor or Beneficiary
In some situations, you may still wish to have your former spouse act as the executor or be a beneficiary of your Will, even after divorce. To ensure this, your Will must explicitly state your intentions. It is not uncommon for a Will to retain mention of a former spouse, especially when there are young children involved. However, it is crucial to seek the advice of a solicitor to ensure that your Will aligns with your wishes and current circumstances.
Separation vs. Divorce: What You Need to Know
If you are separated but not yet divorced, the provisions in your Will regarding your spouse remain intact. If you named your spouse as the executor or beneficiary, they would assume those roles upon your death. However, it is important to note that regardless of your Will’s content, your spouse will still retain Legal Rights to your estate under Scots law. Therefore, it is crucial to review your Will and consider updating it if you are separated but not divorced.
Remarriage and Will Entitlements
In the event of remarriage, it is important to update your Will to reflect your new marital status. This will ensure that your testamentary wishes align with your current circumstances. If you do not update your Will, your former spouse’s entitlements will be removed automatically due to the Succession (Scotland) Act 2016. To appoint your current spouse as an executor or beneficiary, it is crucial to update your Will accordingly.
Moving in with a New Partner
Some people choose not to remarry but decide to “move in” with a new partner. This still considered a major life event that should prompt a review of your Will. Regardless of whether you get married or not, your current spouse will continue to retain certain rights. It is advisable to contact a solicitor as soon as possible and update your Will. This will ensure that your estate is distributed according to your wishes.
Seeking Professional Advice
The law surrounding Wills and divorce is complex. We strongly recommended that you seek professional advice about updating your Will. Our solicitors have many years of expertise in Wills and Estate Planning. We can provide personalised guidance tailored to your individual circumstances. We can help you navigate the complexities of divorce and ensure that your Will accurately reflects your wishes.
Contact us if you would like help with updating your Will after divorce
Updating your Will after a divorce is crucial to ensure that your testamentary wishes align with your current circumstances. Failure to do so can have unintended consequences and potentially leave your estate vulnerable to complications. You can protect your loved ones and have peace of mind by reviewing and updating your Will. When you do that, your estate will be distributed according to your wishes. Don’t underestimate the importance of updating your Will after divorce – it’s an essential step to safeguard your legacy.
Our solicitors provide practical advice and draw up Wills for clients in Rutherglen. Glasgow, across Central Scotland and beyond.
If you would like to discuss changes to your Will or, if you do not have a Will and would like to make one, simply contact us.
If you like this, you may also be interested in these articles: