Relationship ending – is it time to unpick your estate planning?

Published by Sarah Kench on 3 February 2022

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Planning ahead for your future is sensible. All couples are advised to make a new Will when they get married or enter a civil partnership and to consider putting in place a Lasting Power of Attorney (LPA), to look after their finances, health and welfare if one day they can’t make these decisions.

But with 42% of marriages sadly ending in divorce and an increasing trend for divorce amongst older couples, a question we are sometimes asked is what happens to the Will, Trust and LPA if we subsequently get divorced?

Wills

As far as your Will is concerned then once the divorce is finalised, your former spouse or civil partner will automatically be treated as deceased. They can’t be an executor or a beneficiary unless you make a new Will to include them. You should update your Will as soon as your relationship breaks down and definitely make a new one as soon as your divorce is finalised to list new beneficiaries and executors.

Trusts

Unlike Wills, getting divorced changes nothing at all. If your other half is either a beneficiary or a trustee they will remain so even after you are divorced. How you can deal with the consequences depends entirely on the legal provisions relating to your trust and who has the power to make changes. It’s vital you take legal advice unless you are quite happy for everything in the future to carry on just the same as before.

Lasting Powers of Attorney

Where a marriage ends and one of you is the donor who has created the LPA and the other is an attorney, the divorce causes the appointment to come to an end.

If the divorced attorney is the only attorney appointed, then the LPA will no longer be effective and so no one will be able to make decisions on your behalf without going through a long and costly Court process. However, if the divorced attorney is one of two or more attorneys appointed jointly and severally, then the other attorneys can continue to act. But if the attorneys are appointed jointly, then the appointment of all of them also comes to an end so you must make a new LPA.

After you are divorced you should send the Office of the Public Guardian evidence of the divorce with the original LPA for amendment.

If for any reason you want your spouse to continue to be your attorney after you are divorced special wording can be included when the LPA is created but this is very uncommon.

If you would like to discuss the effects of divorce and how this relates to Wills, Trusts or Lasting Powers of Attorney please get in touch with our legal team today.

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