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‘I do’ – The Effect of Marriage and Divorce on your Will

‘I do’ – The Effect of Marriage and Divorce on your Will

Hazel Power

Published by
Hazel Power

16th May 2018

Effect of Marriage on your Will

Unlike in England, marriage does not invalidate your Will in Scotland. Therefore, if an individual creates a Will before marriage, this will be valid and applicable after marriage in respect of the appointment of their Executors (those responsible for administering the estate) and the distribution of their estate on death.

Following marriage, even where there is a Will, legal rights allow the spouse to claim a proportion of the deceased’s estate. Legal rights are a distinctive feature of Scots law and protect certain members of the family from being disinherited. These rights are however limited in scope and only apply to the moveable estate (money, shares, cars and furniture etc.).These rights do not extend to your heritable estate (house). The surviving spouse would be entitled to claim one third of the deceased’s net moveable estate if the deceased was survived by children (or their issue), or one half of the net moveable estate if no children or their issue survived.

For example, Tom made a Will four years before marrying Juliette leaving his entire estate to his brother, Rory. After marrying Juliette, Tom does not change his Will. When Tom dies Juliette will be entitled to claim her legal rights. Tom does not have any children. Therefore, Juliette will be entitled to claim one half of Tom’s net moveable estate, with Rory receiving the remainder of the estate.

It is therefore important that your Will reflects your current wishes and intentions so not to inadvertently have unwanted results.

Effect of Divorce on your Will

On the other hand, divorce has an automatic effect on your Will, following the introduction of the Succession (Scotland) Act 2016. It is presumed that individuals do not want their ex husband or wife to benefit from their estate. If a deceased’s Will appoints their ex spouse as an Executor or leaves assets to their ex spouse, the ex spouse shall be treated as if they predeceased, provided that the deceased was domiciled in Scotland after 1 November 2016 and the divorce/dissolution was obtained from a court of civil jurisdiction in the UK, Channel Islands or Isle of Man or is otherwise recognised in Scotland. It should however be noted that these provisions do not apply in the case of the appointment of a former spouse as a guardian to minor children.

As a result, If an Executor is provided for as a substitute for the ex spouse in the Will, the substitute would be appointed as Executor, and the assets left in favour of the ex spouse would form part of the residue of the estate.

For those that still wish their former spouse to inherit from their estate or act as their Executor it is now necessary to explicitly state this in the Will, taking into account the 2016 Act.
Prior to 2016, divorce had no impact on a person’s Will. Even after the couple had divorced, the spouse could benefit from their former spouses’ Will. Therefore, the consequences of not changing your Will after divorce were far greater then than in the present day.

Extension to Survivorship Destinations

This ‘revocation on divorce’ effect shall also extend to survivorship destinations. This is a provision commonly written into a property’s title deeds that title is joint names and that the property shall pass automatically to the survivor of them without any further legal intervention. From 2016, this no longer takes effect where the parties have divorced.

To conclude, following the making of a Will, it is important to keep it up to date to take account of any change of circumstances. To ensure that your Will reflects your wishes, amending your Wills should be at the top of your to do list after saying ‘I do’ or after divorce.

The information contained in this newsletter is for general guidance only and represents our understanding of relevant law and practice as at May 2018. Wright, Johnston & Mackenzie LLP cannot be held responsible for any action taken or not taken in reliance upon the contents. Specific advice should be taken on any individual matter. Transmissions to or from our email system and calls to or from our offices may be monitored and/or recorded for regulatory purposes. Authorised and regulated by the Financial Conduct Authority. Registered office: 302 St Vincent Street, Glasgow, G2 5RZ. A limited liability partnership registered in Scotland, number SO 300336.