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The Impact of Divorce on Wills and Estates in Scotland

The Impact of Divorce on Wills and Estates in Scotland

Divorce is a significant life event that can have a profound impact on various aspects of your life, including your estate plan and will. In Scotland, the law has specific provisions that address what happens to your will and estate when you go through a divorce. This article aims to provide a straightforward overview of these provisions and offer guidance on steps you might need to take to ensure your estate plan reflects your current wishes.

How Divorce Affects Your Will

Automatic Revocation of Spousal Provisions:

In Scotland, since November 2016, divorce automatically revokes any provisions in your will that favour your former spouse. This means that if your will includes your ex-spouse as a beneficiary or appoints them as an executor or guardian, these parts of the will are nullified upon divorce. The rest of the will, however, remains valid.

Impact on Children:

Provisions for your children are not affected by your divorce. If your will leaves assets to your children or appoints a guardian for them, these parts of your will continue to be valid and enforceable.

Joint Property and Assets:

If you and your ex-spouse own property or assets jointly, the way these are handled can vary. Typically, joint tenancy arrangements will convert to tenancy in common, meaning you each own a distinct share of the property. This does not automatically happen upon divorce and often requires legal action or mutual agreement to finalise.

Steps to Take After Divorce

Update Your Will:

Given that divorce revokes provisions in favour of your former spouse, it is crucial to update your will to reflect your current wishes. This might involve naming new beneficiaries, appointing new executors, and ensuring your assets are distributed according to your desires.

Review Beneficiary Designations:

In addition to your will, check the beneficiary designations on your life insurance policies, pensions, retirement accounts, and any other financial instruments. Divorce does not automatically change these designations, so you need to update them separately.

Consider Guardianship Provisions:

If you have minor children, it is important to review and possibly update the guardianship provisions in your will. Ensure that the designated guardian is someone you trust and who is willing to take on the responsibility.

Update Powers of Attorney:

If your ex-spouse was named in a power of attorney or living will, you should revoke these documents and create new ones. Powers of attorney allow someone to make financial or medical decisions on your behalf, so it is vital that these are assigned to a person you trust implicitly.

Seek Professional Advice:

Navigating the legal changes that come with divorce can be complex. It is advisable to seek guidance from a solicitor who specialises in family law and estate planning to ensure that all aspects of your estate plan are appropriately updated.

Potential Complications

Intestate Succession:

If you do not update your will following a divorce, and your will is rendered partially invalid due to revoked provisions, the intestate succession laws in Scotland may come into play. This could result in your estate being distributed in a manner contrary to your wishes.

Claims on the Estate:

An ex-spouse may still have claims on your estate, particularly if there are ongoing financial obligations such as maintenance payments. It is important to address these potential claims in your estate plan to avoid legal disputes after your death.

Inheritance Tax:

Divorce can affect inheritance tax planning. Ensure that your updated will and estate plan take into account any potential tax implications and optimise the distribution of your assets to minimise tax liabilities.

Conclusion

Divorce is a life-altering event that necessitates a thorough review and updating of your estate plan and will. In Scotland, the law provides for the automatic revocation of certain provisions in your will upon divorce, but it is crucial to take proactive steps to ensure your estate plan fully aligns with your current wishes. By updating your will, reviewing beneficiary designations, and consulting with a specialised solicitor, you can ensure that your estate is managed and distributed according to your intentions, providing peace of mind for you and your loved ones.

If you are going through a divorce or have recently finalised one, consider reaching out to a solicitor experienced in family law and estate planning to guide you through the necessary updates to your estate plan.  Please contact our Private Client Team on 01324 622 888 or contact help@randa-fa.co.uk and we would be delighted to assist.

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