Disputed Will, Living Wills, Uncategorized

The effect of “separation” on your death

Upon the breakdown of a marriage/civil partnership it is usual for the parties to proceed to finalise the end of their union by applying for a divorce or dissolution of a civil partnership.

Upon the Decree Absolute/Dissolution Order being granted the marriage/civil partnership is over and both parties are then free to proceed with their own lives individually.

However more and more situations are arising whereby a couple separate and never divorce/dissolve the civil partnership. In such situations the parties to the union become estranged.

No formal arrangements are made and it is usual for any assets held in the couple’s joint names to be divided at the date of separation. At that time each party then proceeds to lead their own individual lives, forming new relationships etc.

The only connection between the estranged couple is the validity of their marriage/civil partnership.

This is now posing a great problem upon the death of one of the estranged spouses/civil partners, irrespective of whether or not a Will has been made in favour of a new partner. Any Will made may have supporting declarations to state why they have not included their estranged spouse/civil partner in the Will due to a long term separation. (Please be mindful that such supporting documents will not prevent the estranged spouse/civil partner from making a claim on the deceased’s estate but it will serve as evidence as to why the deceased excluded them from the Will).

All matters after death may proceed without any issue until:

  1. A life policy with a nominated beneficiary is found – this will inevitably still be in the name of the estranged spouse/civil partner. The proceeds of the policy will more than likely be paid directly to the nominated beneficiary.
  2. Any widow’s pension or death in service benefit is likely to be paid to the estranged spouse/civil partner in place of the deceased’s current partner. This will cause upset and delays in payments being made, as the current partner will try and appeal to the Trustees of any pension or death in service benefit payable. The Trustees of the pension fund will make the final decision. If there is no dispute from the estranged spouse/civil partner, the decision may be favourable to the deceased’s current partner. In the event that the estranged spouse/civil partner proceeds with their right to claim, this may result in no payment being received by the deceased’s partner.

Therefore an informal separation may at the time appear to be the more cheap and amicable way to proceed. However upon the death of an estranged spouse/civil partner, problems may arise as the parties are still legally married/civil partners.

Estranged spouses/civil partners will still legally be the next of kin to the deceased. This may entitle them to make the funeral arrangements and deal with the estate – potentially alienating any current partner of the deceased. This, to an extent, can be remedied by ensuring that your Will is updated upon any separation.

The case of Williams V Martin currently being heard in the courts presents these facts:

  • Spouses separated over 20 years ago
  • The deceased lived with his partner for over 18 years and they built a life together
  • No divorce ever took place
  • The deceased failed to update his Will to reflect the change in his circumstances and make any provision for his long term partner
  • Consequently the estranged wife is claiming she should receive his estate as the marriage is still valid
  • At the time of writing a decision has not been reached.

Therefore upon separation it is advisable – if the decision is final – for the parties to:

  1. Proceed with a divorce/dissolution of a civil partnership to provide clarity in the future for both parties
  2. Update your Wills (whether or not a divorce/dissolution of a civil partnership has been finalised) to reflect any new relationship and also the inclusion of any children
  3. Review your nominated beneficiaries for any life polices or death in service benefits.

For further information, please contact our Wills and Probate department on 033 3344 9600, or complete our contact form.



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