Should I have a will or change my will if I am separating from my partner?05-Dec-2019

By Susan Alexander, Consultant Solicitor, Family Law team and Adele Bebbington Plant, Associate Solicitor, Wills, Trusts & Estates

When separating or going through a divorce it is vital that you take advice about your will, family trusts and family home at each stage of the process.

If you die without a will in place (called dying intestate), and are still legally married, the intestacy rules (which apply in these circumstances) mean your former partner will automatically be entitled to most of your estate.

If you and your spouse have joint wills (leaving everything to the other) you will need to consider whether you wish for this to be changed on separation, to ensure that your children become the main beneficiaries. Either of you is entitled to make a new will without reference to the other. Making a will after separation is the best way of protecting your children’s future and making sure that your estate is divided in line with your wishes.

Appointing guardians for your Children
If you have young children, you may want to appoint guardians in your will, this indicates who you would like to look after them if you died. You may have very good reasons why you do not wish for the other parent to look after them. Although the appointment would not be binding, it would give the appointed guardian a legal basis on which to argue that the best interests of the children would be served by living with them rather than the other parent.

Your Home
If you own a house jointly with your former partner, you should find out the legal basis of ownership, your solicitor can help you with this. There are two ways of owning property together – as ‘joint tenants’ (usually the default for married couples) or ‘tenants in common’ where you hold the property in defined shares.

There is an important difference in how property is treated on the death of an owner. If the property is owned as ‘joint tenants’, then on the death of either of you, the survivor is entitled to the whole of the property (even if they are not the beneficiary of your will). If you own the property as ‘tenants in common’ then the survivor is only entitled to their share and the remaining share is divided as indicated by the deceased’s will or by the intestacy rules.

If you are going through separation, your solicitor should discuss the pros and cons of changing a joint tenancy to a tenants in common with you. This is called ‘severing the tenancy’ and you don’t need the other owner’s consent to do this.

The grant of decree absolute of divorce makes any will which provides for your spouse void, unless it is clearly expressed in the will that you intend for your spouse to receive the inheritance even after your divorce. It is vital that you take advice once your divorce has competed to ensure that your estate is left to those you wish to receive it and that those gifts are valid.

At Cullimore Dutton Solicitors our Family Law and Wills Trusts & Estates teams work closely to ensure that we provide a complete service to protect you and your family, ensuring your wishes are respected should the worst happen.

If you are faced with divorce, or would like to discuss your will then please get in touch with our Family Law or Wills Trusts & Estates teams on 01244 356 789 or email

Please note: This is not legal advice; it is intended to provide information of general interest about current legal issues.