Does marriage or divorce have an effect on your Will?

What are the effects of marriage and divorce on Wills?

According to the Office of National Statistics, there were 85,770 marriages in total in England and Wales in 2020 - a decrease of 61.0% from 219,850 in 2019 (largely blamed on the pandemic and restrictions it imposed), compared to a 9.6% increase of divorces between 2020 to 2021.

This large number of unions and separations means there is often confusion about how a Will may be affected after the person who made it gets married/enters into a civil partnership or divorces.

Stephanie Chung, associate in the private client team at Wake Smith, looks at the issue of how a marriage, and divorce, can affect a Will?

This article will cover:

• Pre-existing Wills
• Recent case - Married for 4 days, inherits £10m - family left with nothing
• Making a Will in expectation of marriage
• How does divorce affect a Will?
• Wills made during marriage and before divorce
• Dying with a Will made during marriage and before divorce
• Should I make a Will before or after marriage and divorce?
• Your next move?

Pre-existing Wills

In England and Wales, marriage can have an unexpected effect on a Will.

Under section 18 of the Wills Act 1837, if a person already has a Will in place before they legally marry, the ‘pre-marriage Will’ is automatically revoked once the marriage takes place. This is the same for a civil partnership.

If an individual does not subsequently make another Will after they marry and before they die, then their Will is treated as being revoked or cancelled”. Legally, they are then regarded as having died intestate. The rules of intestacy apply strict procedures about how, and by whom, the deceased’s assets are inherited. This can have a disastrous effect, particularly if you have children from a previous relationship.

Recent case - Married for 4 days, inherits £10m - family left with nothing

Recent headlines centred on the case Lattimer vs Karamanoli : “Married for 4 days, inherits £10m - family left with nothing.”

Dr Evi Kalodiki was terminally ill with lung cancer. She was admitted to a hospice and whilst there prepared a handwritten, homemade Will which left her estate to be split between her partner (Dr Lattimer) and her family. Just hours after signing the document, Dr Evi Kalodiki and Dr Lattimer were married in a religious ceremony, followed by a formal civil ceremony the next day.

As there was no declaration in the Will to say that the Will should still be effective after the wedding, the Will was automatically revoked. This meant that despite Dr Kalodiki’s careful instructions which specified that her new husband, Dr Lattimer, received a sixth of her assets, the remainder being shared between her family and an organisation called the Sarantaris Society, her entire £10m estate passed under intestacy to Dr Lattimer.

Dr Lattimer is now locked in a legal battle with Dr Kalodiki’s sister, who is seeking to uphold the Will on the basis that the will was clearly made 'in expectation of marriage'. The full trial to determine what will happen to her estate of  £10 million, comprising of land, money and shares held in England, the Republic of Cyprus and Greece, is set to take place at a later date.

Making a Will in expectation of marriage

The Lattimer vs Karamanoli case serves as a stark reminder to seek specialist legal advice when making a Will. The situation could have been avoided altogether if Dr Kalodiki had sought advice.

If you are engaged to marry, our specialist team at Wake Smith will ensure that special provisions are incorporated into your Will so that you can get married, fully confident that the wishes in your Will continue to be in place.

How does divorce affect a Will?

Very simply put, there are two stages to divorce in England and Wales.

After the grounds for divorce have been established, a divorce petition is served by one spouse to the other and filed at Court. Once all the necessary legal requirements have been satisfied, the Court will then issue a decree nisi.

If, after another six weeks, there have been no reasons presented to the Court not to, a decree absolute is then issued which dissolves the marriage and the parties are deemed divorced. The divorce is not final until the decree absolute is granted.

Wills made during marriage and before divorce

Often couples going through separation will have received advice from their matrimonial lawyer about making a new Will during the proceedings and before the decree absolute is granted. But if not, it is a good idea to do so and make a new Will.

Most people do not want the ‘ex’, or soon to be ‘ex’, to inherit. However, advice should be taken as to the effect of excluding a spouse in a new Will when the couple are separated but not yet legally divorced. This is because the excluded spouse could still make a claim against the deceased spouse’s estate for reasonable financial provision, if the spouse dies before the pair divorce.

Dying with a Will made during marriage and before divorce

In England and Wales, divorce does not automatically cancel a Will. The Will continues to exist and is still valid, but the former spouse is treated as having “died” before the deceased.

Any gifts to the surviving spouse or the appointment of them as executors fail, but all other provisions remain in place.

Should I make a Will before or after marriage and divorce?

Weddings rarely occur at short notice, so it is sensible to review your Will soon before/after the big day. Whilst it may not be top of the to-do list do in the run up to the wedding, a visit to your solicitor to update a Will is sensible.

It is similarly important for a divorcee to review their current Will on divorce as they may still want their ex-spouse to be an executor or trustee of any trust in their Will (or arising on their death), for the benefit of any children they have together.

It is important to note that different countries have different rules about succession and Wills.

Therefore, if an individual has a foreign will which deals with assets in another country, then it would be wise to check with a lawyer in the other country as to the effect of a marriage on the foreign Will.

Your next move?

• We can guide you through the estate management and Wills. For further information please contact Stephanie Chung at Wake Smith Solicitors on 0114 224 2114 or email [email protected]
• Find out more about our Wills, Trusts and Probate services
• Find out more about our Family law, pre-nups and divorce services
• Click the button below to submit an enquiry

Published 07/07/22