Separation and divorce are never easy. Couples are overwhelmed by emotions, parenting rules, division of property, and support calculations. Unsurprisingly, people often forget to check the Old Testaments they made as a couple.
As a result, your new loved one may be excluded from your estate and your ex may get most of your property just because your old estate plan is still in place.
In this article, we look at the potential impact of a breakdown on a will. However, the legal consequences of a family spit are very fact-specific. One has to consider where the couple lived and whether they were married under common law or legally. Also, what inheritance plan they have and whether they officially completed their separation through a separation agreement or divorce. Because of this, discuss the details of your separation and divorce with your estate planner and your attorney in order to take the right steps.
Effect of Legal Marriage on Your Will
Very often you designate the person you are married to as your executor and beneficiary under the will. However, in many countries your Old Testament would remain in effect on separation. These terms in your will will remain in effect until you formalize your divorce.
It is not uncommon for married couples, when they separate, to forget to revise, or even review, their wills. Also, many people have failed to get divorced for many years. For example, suppose you begin a new common law separation relationship while you are legally married. You now have a spouse under general law, but you also have an ex-spouse who is still your formal spouse on paper. Now let’s say you die and the formal ex-spouse who hasn’t been in your life since the breakup comes on stage. Since you haven’t finalized your divorce, the ex may have most of your assets if your Old Testament stays in place with the separation.
For this reason, it is important to review your will upon separation to make sure it is in line with your current desires. If you are still unsure of the details of your new estate plan, prepare a preliminary will that outlines your current intentions. It’s better than just leaving disputes to your significant other.
What happens to your will upon separation if you’ve lived customary law?
For example, suppose you named your common law spouse as the executor or beneficiary of your will when you lived together. Many countries assume that your ex-common law partner has already passed away for you for the purposes of your will. In other words, if you break up, your ex will lose all of the powers and gifts that you gave him or her in your will. Nonetheless, if you want to protect your assets from your former common law, you should change your will immediately.
The devils are hiding in determining the separation date. This date is not always clear and can be controversial, especially if the estate is sizeable. If your ex can demonstrate that your common law relationship was still in place at the time of your death, then the appointments and gifts you gave in his favor can be upheld. You should therefore update your will immediately unless you want your old will to remain under common law for the benefit of your former partner.
Do I have to update a will in the event of a divorce?
Very often a divorce completely changes relationships and the environment. Since it formalizes the family breakdown, a lot also changes in terms of formalities. A rule in many jurisdictions is that your ex is deemed to have passed away after your divorce. If your Old Testament names him as executor or beneficiary, such designations lose their legal effect. However, you will need to review your Old Testament if you have a divorce to make sure it outlines your current intentions.
It is a common mistake for people to name their spouse as the sole executor and beneficiary of their will and not use alternative names. It is also not uncommon for people to designate members of their spouse’s family as executors or beneficiaries. These decisions can work when the couple is happily married. However, the Old Testament needs to be updated when it is split as it may not take into account the new reality of the now ex-spouses.
Start a new relationship …
Suppose you revised your will in the event of a separation or divorce and left everything to your adult children to protect your property from a new relationship. Your new partner or spouse can receive a portion of your estate anyway. The rule in many legal systems is that one partner or spouse should receive adequate assistance in the event of the death of the other. In this way, your new relationship can outperform the gifts you left for your children. The situation can be even more complicated in mixed families, where both spouses have children from previous relationships.
Because of this, it is important to review your will and estate plan whenever your family situation changes. This simple step will protect your loved ones from stress, confusion, loss of property, and legal costs.
Biography: Anna Dunaeva is the founder of the DLegal law firm. The predictability and transparency of legal services has always been a focus of Anna’s practice. She is passionate about sharing her legal knowledge and through constant communication Anna fulfills her obligation to keep clients at the center of her practice.
Photo by Rhodi Lopez on Unsplash
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