How to protect yourself and your loved ones post-separation

Recently separated - what to do next to change your willThere are so many things to think about if you’ve recently separated or filed for divorce. With new arrangements to be made for your house, savings and children, making a new Will might be the last thing on your mind.

But it’s your house, your savings and your kids that could be most affected, should anything happen to you before that Decree is absolute.

Let’s look at a common situation, like those that we come across in our work with clients, every day.

Anna: separated from her husband (who is not the father of her child).

Anna has a fourteen year old daughter, Megan, from a relationship in her early twenties. They have little contact with Megan’s father and he has no parental responsibility.

When she met her husband – Steve – and they married, they bought a house together as joint tenants. Steve and Anna made mirror wills, leaving everything to each other in the case that one of them should die, and then to Megan if they should both die. Anna has named Steve as legal guardian of Megan, should she die before Megan reaches eighteen.

Now Anna and Steve have made the difficult decision to separate.

There are two potential problems here if Anna does not make a new will.

  1. If Anna dies before the divorce: If anything were to happen and Anna died before she divorced Steve, then her original will would stand and everything would go to Steve. Megan would get nothing. Similarly, any life insurance policies or death in service payments that hadn’t been amended to reflect Anna’s new circumstances would go to Steve. He could pay off the mortgage, have a comfortable amount left over and Megan would not be legally entitled to anything.
  2. If Anna dies after the Divorce: Once the Decree Absolute does come through, if Anna has not amended her will then it is treated the same way as if Steve had died. On the one hand this seems fine – Steve gets nothing of Anna’s and it passes straight to Megan.

There’s just one problem: Steve is still named as Megan’s legal guardian and – as he’s been legally cut out of the will – Megan is now left with no legal guardian and will very probably be placed in state care until a suitable guardian is found.

Also, if the house has remained in joint ownership (perhaps because one side cannot afford to buy the other out, or the house is on the market and has not yet sold), then Anna’s half of the house passes to Steve on her death, even after the divorce.

If this is your situation, you may want to consider changing ownership of the house to ‘tenants in common’ rather than joint ownership. That way you can leave your portion of the house to the person of your choosing.

If you are recently separated and need help and advice on this, or any other estate planning issues, book a free consultation with one of our legal experts. You can book online or call 01342 477 102 and quote ‘Recently Separated Blog’.

This article is for general information only and does not constitute legal advice. You should not rely on this information to make (or refrain from making) any decisions. Always obtain independent, professional advice for your own particular situation.