There are many factors that may affect your will if you are in the process of divorce, and/or considering remarrying. Associate solicitor Louise Daniel answers some key questions regarding changing your marital status and how it can affect your will. She also highlights the importance of ensuring your will is up to date.

When it comes to life-changing experiences such as getting remarried, the last thing you’re probably thinking about is updating your will. Yet, if your circumstances change, it is extremely important to update your will or draw up a new one, to ensure your final wishes are carried out and that your estate is passed on to the people you wish to inherit.

I am filing for divorce, should I update or change my will?

If you are considering separating, or divorcing your spouse, you should also consider making a new will. Should you die before the divorce is finalised and you have not updated your will, most of your estate may still pass to your spouse, as in the eyes of the law, even if you are separated and in the process of divorce, if a final order, (formerly called the Decree Absolute,) has not been granted, you are still legally married.

Therefore, during this period, if you make a new will, you can clearly state who you would like your assets to pass to on death. Although you may still wish your spouse to benefit, should you die before your divorce is finalised, making a new will gives you greater control over what actually happens.

The final order has been granted on my divorce, does that change the status of my will?

The granting of the final order in the divorce process influences any will that exists at that time.

Upon the granting of your final order, any appointment in your will of your former spouse as executor or trustee will be ignored, and any gifts made to him or her automatically lapse. So, for example, if you made a gift to your spouse of £10,000 in your will, once you are divorced this gift will be ignored.

This applies unless you have expressly stated in your will, that your spouse is still to play a role managing your estate or be a beneficiary.

I plan to remarry, does that revoke my existing will?

Once a final order of divorce has been made, a person is then free to remarry. If you do remarry, you need to be aware of the implications this may have on your will and how it may affect your beneficiaries and dependents under the inheritance laws.

If you remarry, your existing will is revoked, and will not be taken into account upon your death.

This means that, unless you have drawn up a new will in contemplation of your marriage, intestacy laws will apply to your estate on death, meaning those whom you wish to benefit from your estate may not benefit at all. This can be costly to deal with and often results in an outcome where your actual wishes may not be honoured.

What are the intestacy laws?

Intestacy laws state if a deceased person is married at the time of their death and has children, (the children may not necessarily be from the surviving spouse), then the surviving spouse will receive the first £322,000.00 of the estate and the rest of the estate is divided equally between the spouse and the children of the deceased – in equal shares. The shares are held in trust until the children reach the age of 18.

Where the deceased person is married but does not have any surviving children or grandchildren, their entire estate will pass to their surviving spouse.

The intestacy laws in this instance are quite draconian and inflexible and do not consider modern family life. If you knew you intended to remarry when you made your will, this situation can be avoided by expressly stating that your new marriage would have no effect on the wishes in the existing will.

Overall, it is vitally important if you are considering divorce, or contemplating remarriage, to seek expert legal advice to ensure that your surviving spouse, as well as any children from any previous marriages, are appropriately provided for and to hopefully avoid difficult inter-family arguments after your passing.

How do I ensure my ex-spouse cannot make further financial claims on my estate?

Either during or after the divorce process, it is advisable to resolve financial matters further to your divorce. If this can be achieved via an agreement that can be embodied into a court order – known as a consent order – which will set out the agreements reached and if appropriate, include a clean break financially between the parties, which means neither your or your ex-spouse can make a financial claim against each other in the future.

Under what other circumstances should I update my will?

Throughout your life, circumstances change and it’s surprising how quickly a will can become outdated, so if you made your will more than three years ago, it would be wise to have a think about what has changed between then and now.

Pinnington Law, part of the WHN Group, specialises in all areas of family law and represents individuals seeking to resolve family law matters either by agreement or through court proceedings where necessary. 

Should you wish to seek advice regarding your divorce and subsequent remarriage please contact us on 0161 761 8099 or by emailing [email protected]

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David Connor, director and family law specialist, explains why some couples may consider entering into a nuptial agreement as part of their commitment to getting married.

What is a nuptial agreement?

A nuptial agreement is a formal written agreement to enable couples to agree how to deal with assets gained during their time together, should their marriage break down in the future.

The agreement can also provide for child and/or spousal maintenance and can also outline an agreed pension splitting.

A nuptial agreement can be made before a marriage in which case it is called a prenuptial agreement, commonly referred to as a pre-nup. You can learn more about prenuptial agreements on our dedicated website page.

If the agreement is drawn up after the marriage, it is called a postnuptial agreement. Much like a pre-nup, a postnuptial agreement is a formal, written agreement which allows individuals to determine how to settle issues relating to financial assets without the need to go to court, should their marriage fail.

The idea behind preparing a nuptial is to avoid the need for couples to resort to court proceedings if a marriage breaks down. A nuptial may be seen as ‘unromantic’, but it can help reduce the risk of unnecessary conflict should a married couple seek divorce, or the marriage fails.

What provisions can a nuptial cover?

A nuptial agreement is very useful where one or both parties have inherited wealth and/or have children from a previous relationship. The agreement can ensure that certain assets owned by one partner are ringfenced and thus not available for sharing.

This means that provision can be made for individuals to retain personally owned properties, individual savings, any expected inheritances, and possessions including valuable items and jewellery. It can also have the provision for an individual to retain a business interest in their family business.

Understanding your commitment and rights when entering a nuptial agreement

The courts will uphold nuptial agreements if the expected formalities have been complied with and the agreement is seen as fair. However, they are not automatically binding upon both parties. They must be entered into freely and willingly by both parties without duress and with full appreciation of the implications.

Nuptial agreements can often provide a different outcome than in the courts and therefore it is important that people understand the rights they may be acquiring or losing in the process.

The documents are complex in nature, should be drawn up by a solicitor and ideally with both parties having separate legal advice in the process. In taking advice at an early stage, you can have the freedom to agree your own terms of separation without the court imposing a solution upon you.

This could protect your family business, minimise acrimony on divorce and ultimately it may save you money at the point of separation.

In what circumstances is a different agreement required?

It is important to note that a nuptial agreement provides for protecting assets in a relationship breakdown and does not specifically deal with provision on death where the couple may have still been happily married.

It is strongly recommended for couples intending to draw up a prenuptial or seeking to prepare a postnuptial agreement to review their wills at the same time and check the provision for the other party in their wills is sufficient. It is then important to review both documents should any circumstance change for either party.

It is also important to recognise that different and complex rules apply to couples who live together but do not plan to marry, as nuptials are designed to protect married couples or couples intending to get married. It is possible to put together a ‘living together’ agreement to work in a similar way to a prenuptial agreement, however, the law relating to unmarried separating couples is very different to that for divorcing couples.

Specialising in all areas of family law, Pinnington Law represents individuals seeking to resolve family law matters either by agreement or where necessary, through court proceedings. If you are planning to marry or are married and wish to discuss preparing a nuptial agreement, contact us on 0161 761 8099 or email [email protected]

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The law treats a business as an asset, making its ownership significant in financial matters related to divorce.

David Connor is a director and leads the firm’s services for individuals and families. He shares key advice on protecting your business in the event of a divorce.

A key aspect in determining how a business is viewed in divorce proceedings is how it is structured. It could be run by a sole trader, as a partnership, limited liability partnership or limited company. A trust can also be established to operate a business.

Even though a business may be a separate legal entity from the parties to divorce and this legal entity may well own the business assets and contracts, the business itself is not immune from financial matters within a divorce.

You may own the business jointly with your partner or you may own it with others. Either way, dealing with a business in divorce raises significant issues which need to be considered.

The value of the business

The business’s value is key when looking at financial remedies. There are several differing methods to give an idea of value and doing this can be a costly and time-consuming exercise.

Generally, but not always, the courts prefer to maintain the existence of a business, but that may mean finding other assets or methods to compensate for its value. That could include paying spousal maintenance, especially where both parties have a hand in the running of the business and it has been their source of income.

If such methods are not possible, the business may need to be sold.

Important considerations when forming a business

On the formation of your business, you may wish to think about who should be involved in its management.

Appointing your spouse as a co-partner, director, company secretary, or shareholder may be attractive but could have consequences down the line. If they have played a legitimate role in the development of the business, this could increase arguments about a claim over the business in the event of a marriage breakdown. It may also give them employment rights.

For limited companies, things like bespoke shareholder agreements and articles of association can have clauses which deal with what should happen on separation or divorce. This may provide buyout options, particularly where companies or businesses are jointly owned by both spouses.

There may be information setting out the different classes of shares for a limited company and the rights that go with them. In other cases, a bespoke partnership agreement may help.

Nuptial agreements can be a useful method to stipulate how assets are to be divided in the event of divorce, including how the business will be dealt with. They are not automatically binding, but where there is appropriate disclosure, separate advice and the outcome is seen as fair and reasonable, then the courts are likely to enforce them.

Trusts can sometimes be used as a structure to run a business. The trustees can own the business assets, and the trust document can state how profits are to be determined. They do have tax consequences, so advice is needed upon a structure of this nature.

Structure is key

As can be seen, there is no one-size-fits-all method that can work for everyone. Thought needs to be given to the structure when a business is being established. That is: sole trader, trust, limited company, limited liability partnership or partnership.

Thought must also be given to the documentation needed to support this. That could be a partnership agreement, shareholder agreement, articles of association or trust deed.

When thinking of getting married, consider if a prenuptial agreement setting out what should happen to the business interests is appropriate. You can also enter into nuptial agreements after marriage.

Above all, seek expert advice along the way. WHN has a team of family law specialists who can assist with nuptial agreements and specialists who can advise on business structures, trusts, company, formation, and associated documentation.

Pinnington Law, part of the WHN Group, specialises in all areas of family law and represents individuals seeking to resolve family law matters either by agreement or through court proceedings where necessary.

For further information on protecting your business in family law matters, call us on 0161 761 8099 on email us at [email protected].

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