Our relationship status at the time of our deaths plays a key role in how our estates are dealt with.
What are the common misconceptions about the impact marriage, divorce and cohabitation play in inheritance disputes?
Firstly, it’s important to understand that there is no such thing as a common law marriage. In particular, it’s important to know that unless you are married, your long-term partner will have no right to inherit your estate unless you leave a will making provision for them.
Another key point to note is that a marriage in the UK will revoke a will, so that if you don't make another will after your marriage, your estate will be dealt with in accordance with intestacy rules.
These rules are quite rigid and old-fashioned rules. In essence the rules dictate that if you don't have any children, everything goes to your spouse. If you do have children, your spouse will inherit the majority of your estate and your children will get a certain amount, but that may not be what you intended.
You can make a will in contemplation of a marriage to allow you to deal with it before your wedding and honeymoon.
What impact does divorce have on your estate?
Divorce also has an impact on your estate, but it does not have the same consequence as marriage. A divorce will not automatically revoke a will. But what the Wills Act, that govern these rules says is that your ex-spouse will be treated as if they had died on the date that the marriage was dissolved.
So, they cannot be an executor and they cannot inherit under a will dated before the divorce.
So, if for example, you made a gift to your spouse, you're divorced, they can no longer inherit that gift. It might be a substantial gift like a property. If there's no substitution clause that says what happens if that person dies before you, then that property will fall into your residuary estate. And if you haven't thought carefully about who your residual estate is being left to, again, you can have unintended consequences. You could also end up with an intestate estate if your spouse was the only beneficiary of your estate and you do not have children.
It is again important to revisit your will on divorce and to take advice before the divorce is dissolved. If you do not have a will and are divorcing, you should ensure you obtain a decree absolute. Your marriage will not be dissolved for the purpose of your estate until you do. Until it is obtained, your spouse would still stand to benefit under intestacy rules.
If you are domiciled in another country at the time of your death or are married in a jurisdiction other than the UK, you may need to take advice from a lawyer in that jurisdiction.
With co-habitation, what is the impact?
It’s important to note that regardless of what your will says, or whether you even have a will, your spouse, ex-spouse, and any cohabitee of more than 2 continuous years may have a right to claim for financial provision from your estate.