Why is it important to update my Will following separation or divorce?

Separation or divorce is a significant life event that brings emotional, financial, and legal changes. In Scotland, where unique legal frameworks apply, revisiting your Will after such events is vital to protect your future wishes and ensure your loved ones are adequately provided for. Updating your Will following a separation or divorce safeguards your assets and reflects your new reality while avoiding unintended consequences and potential complications for your estate.

Here’s why updating your Will after a separation or divorce in Scotland matters:

Immediate impact of divorce on your Will

There is an immediate impact on your Will when you divorce. The Succession (Scotland) Act 2016 brought changes to how a divorced person’s estate is handled. Under this law, in most cases, your ex-spouse is treated as if they had died before you. This means that if your Will was written before your divorce, any provisions for your ex-spouse will no longer apply.

Importantly, if your Will simply stated that you left everything to your spouse, your estate would fall into intestacy, meaning it would be divided up according to intestacy rules, rather than the way in which you would like. Divorce also does not revoke your Will, or reactivate a Will that existed before your marriage.

Separation vs divorce

If you are separated but not yet divorced, the provisions in your Will regarding your spouse remain intact. So if you named your spouse as the executor or beneficiary, they would assume those roles upon your death and they still retain legal rights to your estate under Scots law. Therefore, it is crucial to review your Will and consider updating it if you are separated but not divorced.

Provisions for children

In Scotland, children can only inherit assets left to them when they reach the age of 16. In the case of a divorced couple, if one spouse passes away, assets meant for children may be transferred to the surviving parent, who could be the divorced spouse. You may not want your ex-spouse to control these assets on behalf of your children, so you should review your Will and consider alternative provisions, such as setting up a Trust. This ensures that your assets intended for your children are managed by someone you trust, without placing control in the hands of your ex-spouse.

Guardianship and care of children

For couples with children, the question of who will care for your children if something happens to you is one of the most important considerations after a separation. Divorce may change the family dynamics, and if you don’t amend your Will, you risk leaving the guardianship decisions in the hands of the court or laws that don’t reflect your current situation. you should consider including a clause to reflect your wishes in relation to the care of your children to assist the court with making the decisions, however, it should be noted that this is not fully binding and the decision for guardianship of the children will ultimately rest with the Court, albeit they would take your preferences, if these are provided within your Will, into consideration.

For example, a separated couple may want to specify in their updated wills whom they would like to be the legal guardian of their children, especially if the family circumstances have changed. Without clear instructions, the courts may decide this crucial matter, potentially resulting in decisions that go against your preferences.

Executor considerations

In your original Will, you may have named your ex-partner as the executor or given them power of attorney over financial or health decisions. After separation or divorce this role becomes invalid. Unless you’ve named a joint or substitute executor, a court application may be required to appoint a new executor, which can be a lengthy and costly process.

Appointing a new executor or updating your power of attorney ensures that your estate is managed by someone you trust under your new circumstances.

However, you may still wish to have your former spouse act as the executor or be a beneficiary of your Will, particularly if there are young children involved. To ensure this, your Will must explicitly state your intentions and you should seek the advice of a solicitor to ensure that it aligns with your wishes and current circumstances.