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The rules of intestacy dictate who inherits someone's estate if they die without leaving a valid will. These rules stipulate that if you are married with no children, your spouse will receive the entirety of your estate and if you have children, your husband or wife will receive the initial £270,000 of your estate and half of its remaining value, with the other half passing in equal shares to your children once they reach the age of 18.
This will be the case if at the time of your death you have not yet obtained Decree Absolute, which finalises your divorce and formally ends your marriage, even if you have been separated for a long time, have commenced divorce proceedings or Decree Nisi has been pronounced.
Whilst some married couples may choose not to make a will on the understanding that the intestacy rules match their wishes for the inheritance of their estate in the event of their death, others may have made a will during their marriage naming their spouse as a recipient. In either case, it is important to remember that if you die before your divorce is finalised either the terms of your current will or intestacy rules will apply to your estate.
Once Decree Absolute is pronounced, the law acts as if your spouse had died during your lifetime. If there is no will and you have not remarried, then your children or their descendants will inherit your estate. If you have no children, grandchildren or great-grandchildren your estate will pass to your parents. If your parents are no longer living your estate will pass to your siblings, then to any grandparents, and finally to aunts or uncles. Otherwise the estate is considered bona vacantia – ownerless property – and passes in its entirety to the Crown.
If you have a will that names your former spouse as a beneficiary, executor or trustee, from the date of Decree Absolute the will shall take effect as if your husband or wife had died on that date. They will not inherit any gifts or be able to take up any appointments made under the terms of that will. If your will stipulates other beneficiaries, they will inherit the value of the gift assigned to your former spouse in the shares specified in the will. However, if your former spouse was named as the sole beneficiary in your will, your estate will be dealt with under the intestacy rules after your divorce is finalised until you make a new will.
It is advisable to make or update an existing will as soon as you separate or initiate divorce proceedings to ensure that your wishes regarding your estate are carried out in the event of your death. You should also review and update your will once your divorce has been finalised in case any previous stipulations cannot be carried out, for instance in relation to jointly-owned assets that have been divided as part of the divorce's financial settlement aspect.
It is also worth noting that any jointly owned property that is held as joint tenants will automatically pass to the surviving owner if the other owner dies. Ownership can be converted to tenants in common, allowing each owner to leave their share to whoever they want.
We do not offer a will-writing service and advise that you contact the Law Society to find a Wills and Probate Solicitor in your area.
For further information and advice on this issue, and other family law issues, please contact us for a free initial consultation on 01992 306 616 or 0207 956 2740 or email us.Back to Law Articles