Relationship Breakdown: Wills and Joint Ownership

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When a relationship with a spouse, civil partner or cohabite breaks down should consideration be given to what will happen in the event of death?

Yes. It is likely prior to the breakdown of a relationship that a spouse, civil partner or cohabitee will have made some provision for the other. Whenever a personal relationship changes or breaks down it is important to ensure that testamentary wishes and ownership of property is reconsidered in the light of the new circumstances.

Does a Decree Absolute in divorce or final decree in civil partnership dissolution proceedings revoke a will?

No. The will remains valid but any gift to the ex-spouse will fail as if he died on the date the divorce was finalised.

Ensuring that an up to date will is in place is a priority not only in terms of who is to benefit in the event of death but who is appointed to administer the deceased’s affairs. In doing so situations can be avoided where an ex-spouse has been appointed executor or even a guardian to any step-children in the will since again these appointments would fail.

Prior to a relationship breakdown it is understandable that a spouse, civil partner or cohabite may have benefited the other party in some way whereas upon the breakdown of the relationship it is likely that a spouse, civil partner or cohabite may feel differently and might even wish to exclude the other from benefitting in the event of their death. If there is no will then the Intestacy Rules set out who is to benefit by default. Depending on the size of the estate, an estranged spouse or civil partner may inherit the entire estate and if applicable then children, parents, siblings, uncles and aunts in that order.

Can a surviving cohabite inherit on death?

Only if the deceased has provided for them in his will. A cohabitee, whether former or existing, does not benefit under the Intestacy Rules.

What consideration should be given in the event of remarriage or entering into a civil partnership?

A remarriage or a new civil partnership revokes an existing will by operation of law unless the new will itself is made in contemplation of a specific marriage or civil partnership ceremony. It is also important when entering into a remarriage or a civil partnership to carefully consider how financial affairs are to be dealt with after the marriage or civil partnership particularly where there are competing interests between providing for a new spouse or civil partner on the one hand and the children from previous relationships on the other.

What happens to jointly owned property on divorce?

If property is owned as joint tenants, meaning the whole of the property is co-owned, then there is a legal principle known as the Right of Survivorship which means that the property will pass automatically to the surviving co-owner of the property even if divorce or civil partnership proceedings are taking place or the parties separate and even if there is a will specifically dealing with that property in a different way.

The beneficial joint ownership arrangements need to be altered so that the parties become tenants in common which means each will have a specified share in the property and each share of the property will pass according to the terms of the deceased’s will if they have a will or under the Intestacy Rules if they do not.

How can joint tenancy be altered so that each party owns a specified share in the property?

By what is technically known as a Severance Notice which must be sent to the joint owner and the arrangement should then be registered with the Land Registry for completeness. This results in a notional 50:50 share until such time as a final agreement is reached in relation to the jointly owned property.

Does divorce sever a joint tenancy?

Not directly. However, the courts will consider whether there is sufficient immediate intention to receive a specific share made by either party to the divorce proceedings. If the court believes there is such an intention then it will sever the tenancy during the proceedings.

Why is it crucial to make a will during divorce proceedings?

To ensure that the surviving spouse does not inherit by default under the Intestacy Rules. It is important to ensure that 50% of property currently owned passes to the deceased’s preferred beneficiaries as provided for in their current will rather than under an out of date will or under the Intestacy Rules.

If you have any queries with regards to relationship breakdown please contact Paul Jordan at Slee Blackwell 2 Lime Court Pathfields Business Park South Molton on 01769 575982 or 01271 349959 or email at [email protected]