Inheritance Rights After Separation

Many people who are contemplating separation, or who are newly separated, and have not yet divorced, do not understand the complexities of inheritance rights. Understanding inheritance rights post-separation is crucial. It can help you protect your assets and plan for the future.

This article will explore how marital status affects inheritance, separation agreements and cover the role of wills and estate planning. This includes intestacy rights.

Legal Separation vs. Divorce

Legal separation and divorce are often confused but are quite distinct. Many estranged couples believe that if they have been separated from their partner for long enough, all financial ties, as well as emotional, are over. However, separation only allows you to live separately from your partner but remain married.

Separation does not end the financial commitments or claims that each spouse may have regarding the other’s finances or assets.

This means, without legal support, no matter how long you are separated your spouse may be entitled to your finances and assets if you do not divorce.

Once divorced, individuals are free to remarry and may have no legal obligations to their former spouse if all financial commitments are severed.

Learn more in our What Happens If You’re Separated But Not Divorced? advice guide.

How marital status affects inheritance

Your marital status plays a crucial role in determining inheritance rights. Once married, a spouse will likely have a legal claim to a portion of each other’s estate (unless there is a prenuptial or postnuptial agreement in place).

However, for separated individuals, the situation becomes more complex. Although you’re separated, you may retain the rights you gained when you were married. If you haven’t finalised a divorce, your separated spouse might still have the same rights as they did when you were not separated.

What would happen to my inheritance if I was separated and not divorced?

The court cannot make financial orders about dividing a couple’s money and other assets until the later stages of the divorce proceedings. But many couples do not divorce immediately after they separate.

Even if you are separated, you are still married, meaning any money or other assets inherited or gifted to you during your marriage may not be excluded from the matrimonial financial assets.

To protect an inheritance, or if the person making the inheritance is keen for you to protect it, you should consider entering into a pre-nuptial or post-nuptial agreement with your spouse. 

You should discuss your situation with a family law solicitor to find the best solution for your circumstances.

The rules of Wills and estate planning when separated

The Rules of Intestacy do not recognise a separated couple any differently to a happily married couple. This means that if one spouse died without a Will, the other would be entitled to inherit from them as the main beneficiary of their estate, regardless of whether they were still happily married or had been estranged for years.

A well-drafted Will specifies asset distribution according to your intentions. This could override the laws which might otherwise favour a separated spouse; however you would need to discuss this with a specialist will writing solicitor.

It’s also important to create and/or update your Will after separation, as it helps ensure that only chosen beneficiaries inherit your assets. Updating your Will regularly reflects your current wishes and prevents undesirable asset distribution.

Find out more on Wills on our making in our Will advice guide.

What happens to my assets if I die and separated?

A key consideration for anyone going through a separation or divorce is deciding what they would want to happen to their estate in the event of their death, especially considering their changing personal circumstances such as separation.

If you have a Will, your estate will pass under the provisions set out in your Will. This means that if you have appointed a spouse as an executor or trustee then this will remain.

If you do not have a valid Will, your estate will pass under the rules of intestacy and your spouse will inherit specific amounts, depending on your family circumstances. If you do not have children, then the whole of your estate will pass to your spouse.

Separation agreements and their Impact on inheritance

Separation agreements play a key role in outlining financial and property arrangements between spouses. It can pre-empt potential disputes over assets and ensure your wishes are respected. These agreements can include clauses related to inheritance rights, impacting who gets what if a spouse passes away.

Always revisit agreements as circumstances change to keep them relevant and effective.

Learn more on our separation agreement page.

Separation, divorce, and estate planning solicitors

Dealing with marital and nonmarital assets, including inheritance, is complex when you are separated and not divorced. Each family’s circumstances are different, and there are many factors to consider such as the date of separation and what legal documents are in play (other than a marriage certificate).

Howells solicitors offer both family law and estate planning services, and we can help with:

– Assets division.

– Protecting assets during divorce and separation.

– Separation agreements.

– Will writing.

– Updating your Will.

– Inheritance disputes.

– Gifts and trusts.

Safeguarding your inheritance post-separation requires planning and legal guidance. Understanding your rights and updating estate plans are crucial steps.

You can email Howells to make an appointment at [email protected] or call us:

Sheffield: 0114 249 66 66

Barnsley: 0122 680 51 90

Rotherham: 0170 936 40 00