Protection if one should die between separation and divorce
THE POSITION ON THE DEATH OF ONE OR OTHER OF YOU BETWEEN SEPARATING AND FINAL DIVORCE
Should either you or your spouse pass away between now and all your divorce matters being concluded then the financial outcome of that may be very different than you would want it to be given that your marriage has broken down and you have separated. Obviously the chances of this actually happening are probably slim. However, it is important that you are aware of the Law and what is likely to happen if this should occur. You can then consider whether you wish to take steps to change what would happen as things now stand.
It may very well be a limited period of time until the divorce is concluded and the finances on divorce resolved and matters will change once there has been a divorce as divorce does affect Wills and Intestacy (the legal position where there is no Will). You should always make a Will as and when you are divorced.
A JOINTLY OWNED HOUSE
It is likely that if you own a house with your spouse this is owned as Joint Tenants. This is a specific Legal situation which has implications. The most relevant being, that if one Joint Tenant should die then the remaining Joint Tenant takes the property completely and totally under what is called the Right of Survivorship.
The Jointly Owned Property held as Joint Tenants is not part of a deceased’s estate. It is not subject to the deceased person’s Will nor does the Law relating to Intestacy apply to the interest in that property – it passes automatically under the Right of Survivorship to the Joint Tenant who is still alive.
As things currently stand if you should die your spouse will take the property completely and totally. If your spouse should die then you will take that property completely and totally.
It may be that you are content for the matter to remain this way.
However, you may choose to make a change to this position and alter what happens in the event of you dying. This would be the case if you are determined that your spouse should not benefit from your share of the Matrimonial assets should you pass away between now and conclusion of the divorce.
In thinking about this you need to consider the housing and care of any minor children: where will they live and who will support them. You must also be aware that it is not always possible to block the entitlement of a spouse if they are your dependant. Your spouse may have a route to get some money from your estate in any event.
You should also consider that if you make an alteration to the legal ownership of the jointly owned property it also alters what happens with your interest and what you would get in the event of your spouse dying.
If you do wish to alter the current position this can be done by serving a Notice Severing the Joint Tenancy. This means informing your spouse that you are no longer Joint Tenants. This needs to be done formally by a Formal Notice.
Once a Notice has been served then both you and your spouse each have a defined share in the property. This is assumed to be 50/50 for the purposes of your Testamentary wishes but this should NOT affect either yours or your spouse’s entitlement in the property for the purposes of the finances on divorce or the division of monies in that respect.
In order to ensure that your half share in the property goes to those you wish to receive the benefit in the event of your death, then you MUST make a Will to ensure that you have specified that your 50% share goes to your chosen beneficiary and not to your spouse.
You need to consider carefully whether you wish to alter the current position. As matters currently stand you could take all the property if anything happened to your spouse and, likewise, all your interest would pass to your spouse outright if anything happened to you.
As matters stand, it is likely that your property and assets will pass to your spouse in the event of your death. This may be by way of the Laws of Intestacy if you do not have a Will or by way of a Will if you do.
If you wish to change this position you should make a Will setting out what you wish to happen to your property should you pass away between now and the Divorce. You would also need to make a Will after the Divorce when matters have been resolved and you know what your long term financial position is.
There is a possibility that, whilst you remain married, your spouse may in any event apply for provision against your estate in the event of your death under an Act called the Inheritance (Provision for Family and Dependants) Act 1975. Your spouse may be entitled to some benefit from your estate and can apply to the court for money after your death.