Marriage or a Will: which trumps which?

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My husband and I separated seven years ago. We got a Decree Nisi, but not an Absolute. We have both made wills. Mine leaves everything to our three children. I have no idea what is in his, but he has two children from a previous marriage, so I am assuming he has split his estate five ways. Given that we are not technically divorced, do our wills still stand in the event of one of us dying - or could/would the surviving spouse be able to make a claim on the dead spouse's will, on the basis of still being legally married? We are both resolutely single.

Would be very grateful for any informed insights!

First off, are you in England?

@SpangleWhorl

First off, are you in England?

Good question, and I should have said. Yes, we are in England.

As things stand, the surviving spouse could make a claim against the other's estate under the Inheritance Act. That doesn't necessarily mean they would get anything, of course.

@prh47bridge That is what I thought. I obviously wouldn't even think of trying - unless he did something completely insane (which isn't entirely impossible). I don't imagine he'd try to claim against my estate as it all goes to our children.

In my experience, the fact that you are both still legally married, trumps each of your Wills. You need to have a solicitor who does Wills to look over yours and check if it is written in a way that best reflects your separated status, I forget the name for it. Worst case scenario is that your husband is still your next of kin, then the children so it is definitely worth checking how your Will would stand up now. Once you get the decree absolute, I was told a Will would need to be updated again.

have you made your wills since you separated?

If your wills dated from before you married then they would be invalid. If they were written after marriage then they're a priori valid. Your wording suggests that you very sensibly made them after you separated so they're valid on the face of it. In theory the separated spouse could challenge for provision under the Inheritance Act, but if you're not supporting each other at the moment then it's less likely to succeed.

You say that an inheritance act claim is not the kind of thing either of you are likely to do, but there are unlucky sets of circumstances in which one of you dies and the other is incapacitated so their next of kin can and should enforce their strict legal rights - that's one reason why you need to tie these things up in as watertight a way as possible.

It would be helpful to enclose a letter with your will saying "I have intentionally made no provision in my will for my STBXH because we have been separated since x date and maintain separate finances with no financial support in either direction." (Or whatever).

If the surviving spouse did make an Inheritance Act claim, the starting point would be to look at what they would have got if the marriage had ended in divorce rather than death. The longer you are financially independent from each other, the less that will be. It may already be that the courts would decide that neither of you had a claim. However, if you want certainty you need to get a financial settlement and finalise the divorce.

Your Will is valid (assuming properly witnessed etc), but your husband does have grounds to make a claim for financial provision from your estate. He would in effect be suing your children.

Thank you. To answer a few questions:

We made wills when we were living together, then re-wrote them when we married, then re-wrote them post separation. Mine was done with a solicitor. His was not, because he regarded it as a waste of money (I think he was wrong).

In my case, I would only ever (try to) contest anything if our children were to be bypassed. However, @EvilRingahBitch 's point about us both dying/being incapacitated is a good one.

We separated on a 'clean break' basis, but our own financial agreement has never been seen by solicitors, never mind rubber stamped by a court - just witnessed by two independent people. However, we did both take a lot of legal advice beforehand and have both grumpily stuck to it, by and large, for the past seven years.

I will perhaps revert to the solicitor with whom I made the will, to see what he says.

If you drew up the latest version post separation then it should stand

@gogohm

If you drew up the latest version post separation then it should stand

The will is valid regardless of whether it was drawn up pre- or post-separation. However, until the OP and her ex get a proper financial settlement and finalise their divorce, her ex could make an Inheritance Act claim when the OP dies. I doubt he would get much, if anything, but he is entitled to try.

That's what I thought, @prh47bridge. I am going to clarify with my solicitor just to be certain, but these responses have really helped.

What is stopping you atm to finalise the divorce?
7 years is a long time….

RE a financial consent order that must be passed by a Judge, this will prevent either party from making any financial claims on each other in the future eg if one were to come into inheritance money or some other windfall, the other can make a claim for a share of it and there is not time limit. I am not sure how your private agreement would stand up in Court if ever it came to that.

@TheTrinity

RE a financial consent order that must be passed by a Judge, this will prevent either party from making any financial claims on each other in the future eg if one were to come into inheritance money or some other windfall, the other can make a claim for a share of it and there is not time limit. I am not sure how your private agreement would stand up in Court if ever it came to that.

I am not sure it would, @TheTrinity I did ask my solicitor about this at the time. He said it would be quite easy to say that our agreement was a declaration of intent, rather than a legally binding document. So while it would have some force, it could be contested. However, he advised that it was on balance slightly better for me if it remained this way

Finalise the divorce. It makes the situation so much simpler. Cheaper than your beneficiaries possibly having to fight an inheritance act claim. Wills seem to bring out the worst in people.