“When beggars die…”

Author: Teresa Cullen

“When beggars die, there are no comets seen; The heavens themselves blaze forth the death of princes” (1)

Continuing the Shakespearean theme of Helena Luckhurst’s article ‘Shall I compare thee to…a trust?’ there are a number of points to take into account when there are changes in your family situation. In the hope that you are not a beggar, and notwithstanding that you might not be a prince, it is important that you determine what should happen with your assets. Leaving matters as they are might result in some unwelcome consequences.

It is often overlooked that the final decree of divorce has the effect that:

  • any gift left to your ex-husband or ex-wife in your Will will fail;
  • if you have appointed your now ex-husband or ex-wife as your executor in your Will, this appointment fails; and
  • if an ex-spouse was appointed as a guardian in the Will, the appointment would fail with regard to any children from the deceased’s previous partners.

The effects are obvious, and these issues can often cause delay and distress, not to mention additional costs.

Matters are easily rectified by reconsidering any existing Wills, or by making a new Will as soon as the decision to separate is made. It is never too early to plan. In this way, you have the ability to choose:

  • your executors;
  • any guardians for children (not being the children of both you and your ex-spouse); and
  • the destination of your assets.

With a suitably worded Will, you can build in the flexibility to allow your executors to deal with any financial claims that your ex may have against your assets if you die before the final decree, whilst also providing for different (or no) provision to be made for your ex if you die after the final decree.

Another point to bear in mind is that if any property is owned jointly between husband and wife (in what is known as a “joint tenancy”, as opposed to a “tenancy in common”) then notwithstanding a divorce, the property will still pass to the survivor, which is often not the intention and can cause difficulties for any children.

Again, this can be easily dealt with by addressing the issue at the time of separation and, in addition to considering the comments above relating to Wills, taking advice to determine whether or not to sever that joint tenancy.

You will also need advice on whether any expression of wishes given to your pension trustees, or any trusts into which life policies have been written, need to be changed now.

On a lighter note, on a happier occasion, it should be borne in mind that marriage also affects Wills. Any Will made prior to marriage (unless it is made specifically in contemplation of the marriage to a specified person which is due to take place) is automatically revoked on your wedding day.

My earlier piece relating to pre nuptial agreements ‘With 33.5% of my worldly goods I thee endow…’ may also have relevance here.

In ensuring that your affairs are in order, it would be possible to say:

“Nothing in his life; Became him like the leaving it.” (2)

(1) William Shakespeare – Julius Caesar Act II, Scene 2, line 30.
(2) William Shakespeare – Macbeth Act I, Scene 4, line 7.

Teresa Cullen, Partner, Fladgate LLP (tcullen@fladgate.com)

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