It’s complicated: marital status and making a Will

There have been a number of changes in regard to marriage law since 2004, with the most recent being the introduction of opposite-sex civil partnerships in 2019.  These changes have been important in providing clarity over legal rights and financial security when one member of the couple dies.

Meanwhile, despite ongoing campaigns, couples who choose not to formalise their relationship can face a great deal of uncertainty when one of them dies if the survivor is not provided for in a Will.

Cohabiting is becoming more commonplace and it often appeals to couples more than marriage or a civil partnership. However, it is important for cohabiting couples to understand that they do not share the same legal rights and financial security as those who have formed a legally recognised union.

Below are some of the issues which you need to consider in regard to your Will and your marital status.

Different rights under intestacy rules

When a person who is married or in a civil partnership dies without a valid Will, (called intestate) the distribution of assets will follow rules determined by intestacy law.

A spouse or civil partner will automatically be entitled to the estate, although it should be noted that the full extent of entitlement depends upon whether the couple have had children together, as well as the way in which certain assets are held. A spouse or civil partner can at least rest assured that they will be provided for to some extent.

Cohabitees, however, do not receive the same automatic entitlement, regardless of how long the couple has lived together. As such, a cohabitee may no longer be in a position to remain in the home they shared with their partner, or it might be necessary for them to make a time-consuming and expensive claim against the estate.

Implications of a change in marital status on making a Will

When making a Will, there are a number of considerations which will depend upon marital status and any planned changes to this status:

• If you are a cohabiting couple, intestacy provisions may not reflect your wishes, you need to think carefully about making your Wills if you wish to provide for each other.
• If you are planning to get married or enter a civil partnership, the law dictates that any marriage or civil partnership formed after a Will is executed has the effect of revoking the Will in its entirety. As such, if you intend to marry or become civil partners, you need to ensure that your Wills set out your wishes clearly and will not be revoked by your marriage (if this is what you intend).
• If you are in the process of getting a divorce or dissolution, a formal separation can take time. If you do not want your spouse or civil partner to inherit if you die before the proceedings have been completed, you should consider updating your Will before receiving your final order.
• Once your divorce or dissolution has been finalised, any reference to your ex-spouse or ex-civil partner within your Will is to be read as though that person died on the date your divorce or dissolution was finalised. It is important to ensure that your Will is updated following divorce or dissolution to make sure that it continues to reflect your wishes.
• Cutting out a dependant ex-spouse or ex-civil partner may not be appropriate in all circumstances, for example if you have been ordered to continue making regular payments to them. This makes updating your Will post-divorce or post-dissolution even more vital.
• For a further relationship, you should consider and seek advice on any claim a former spouse or civil partner may have over your estate to ensure that your current partner is protected, especially if you have children from an earlier relationship.

Forgetting to update your Will in light of a change of circumstances could lead to your wishes not being carried out.

How we can help

For all people, it is vital that you understand your legal rights and that you ensure your wishes are properly protected and upheld. Our solicitors can explain how your estate will be dealt with in view of your circumstances and help you plan to achieve your wishes.

Rebecca Dixon is an SFE accredited solicitor in the private client department at Barker Gotelee, Suffolk solicitors.

Personal Solicitors Suffolk – for more information on our range of legal services, please call the team on 01473 611211 or email [email protected]