Wills For Divorced Or Separated Persons
Will drafting for married couples with adult children (over 18) Dos and Donts
.
On the death of one spouse, life continues from a legal and tax perspective. Why?
For a married couple in drafting their wills, they have to look at their situation jointly. In these cases mutual wills are drafted and those wills tend to mirror each other.
It is generally the case that a husband will appoint his wife as his executor and leave all his assets to his wife and vice versa. So in the first instance, the surviving spouse will take all the assets of their deceased spouse. There are no taxes between a husband and wife (or civil partners or married same sex couples) and so from a tax perspective in this case, death has no effect.
Legal arrangements will be made to place all the assets into the name of the surviving spouse and the surviving spouse will continue to manage the assets for the benefit of the family and the children under 18 who will continued to be reared by the surviving spouse in the normal way.
So really, if I get this right, for a married couple, the wills only kick in when the last of the two
die?
That’s right. In a husband and wife situation, as the survivor of the two will inherit everything, all that really should be considered is what will happen when the second member of the couple dies. That is really where the main provisions kick in. So a husband and wife should draft mirror wills. Generally, a husband and wife will want to have similar provisions between them, such as assets passing to their children on their death. As it is unknown who will be the last survivor or if they may die together, the wills will be the same in catering for what happens on the death of the last of them.
This is an agreement between the parties whereby they agree to regulate their relationship after they have separated, regulate the assets between them, cater for maintenance payments, access and custody of their children and a range of matters. Neither party would be free to marry another person by the entering into a Separation Agreement, but it is recognised as a tried and trusted method whereby parties can, if they remain on relatively civil terms, agree to the relationship going forward. A separation agreement will extinguish succession rights and allow parties to make whatever provision they wish in their wills.
In the event that parties are not in a position to enter into a Separation Agreement, they may seek a judicial separation. This is where the parties seek an Order from the Court confirming that the relationship is at an end and imposing between the parties a range of Orders which would regulate the relationship going forward, to include dealing with their matrimonial property, access to children, maintenance payments and other arrangements. A Judicial Separation is not the same as a decree of divorce and the parties are still not free to marry afterwards. However, if they have obtained a Judicial Separation Order, their succession rights between them will have extinguished.
Judicial Separation was normally obtained in Ireland due to the fact that you had to be separated for a period of four years before one could obtain a decree of divorce. Now that period of separation is reduced to two years. Parties may wait the two years now to proceed with their divorce rather than obtaining a judicial separation. An order for divorce would contain an order regulating the relationship between the parties and it also extinguishes between the parties their mutual succession rights. Importantly it permits the separating parties to remarry.
If it is the case that you were divorced or separated abroad then you must provide this information to your solicitor. In some cases even though you
are validly separated abroad, that separation may not be recognised in Ireland. Each case would have to be looked at on its own merits. A foreign divorce will be recognised in Ireland if it is granted in the country where one of the parties is domiciled.
Should a husband and wife be in agreement about what happens to their assets on their death.
Generally, it is preferable that a husband and wife have discussed matters between them in relation to what they wish to do with their assets. So that their mutual wishes can be honoured. However there can be circumstances where individual wishes or preferences can be catered for.
I have heard of an executor, what is it?
An executor is the person who manages your affairs after your death. They are the person who controls your funds and assets until such a time as they are distributed out amongst your beneficiaries.
Can my spouse be my executor?
Yes, it is normally the case that the surviving spouse will be the executor of their deceased partner and they will look after all monies for them.
Can my children be my executor?
Yes, even though you are leaving assets to your children, they can also act as executor of your estate. And in a husband and wife situation it is normal that one or two children are appointed as executors to manage the affairs of the last survivor.
Have you any tips with what we should do with our assets?
So, you are now getting into the meat of your will. What do you want to do with your assets. Lots of couples want to treat their children as equally as possible. That may nor may not be the best course of action, here we set out our tips for consideration in leaving your assets.
Tip 1. No need to treat all children equally.
There is no strict need to treat all children equally although it is understandable why people would wish to do that. However, we normally advise that you look at your asset mix and select assets that suit particular children. So if you have a child living at home and another child living in Dublin and
you have an investment property in Dublin, it may make sense to leave the family home to the child living at home at the property in Dublin to the child living in Dublin. Likewise if you have a child who has an interest in a business or farming then it makes sense to leave the business to that child and compensate other children in other ways.
Tip 2. Do not split up real property (ie houses, apartments, land).
Time and time again we see difficulty with wills where the parents leave a house or a holiday home 5 ways or 4 ways between children. These type of assets are known as real property. It is not recommended to leave these assets between a number of children. This is because each owner has a veto over what can be done with the asset. Therefore, the only dealings that can be done with the assets are where all are in agreement. Further if one of the children pass away, the share of your child may pass to their spouse, or become divided amongst that child’s children, thus further splitting out the shares. So it is better if possible to leave real property assets to one or at most two children at a time.
Tip 3. You can always sell an asset
There is always the option of making provision in your will that an asset will be sold on your death and the proceeds divided amongst your children. This is a way of dealing with splitting up your assets equally.
Tip 4. Flexibility in relation to liquid assets (cash, bank accounts, stocks, shares)
You have a lot of flexibility when it comes to leaving assets such as cash, bank accounts, stocks, shares and the like. These assets can be easily divided amongst your children.
Tip 5. There is no need to list your assets
There is no need to list your assets in your will. Your assets may change over time. One bank account may be closed and replaced with another. You may sell one set of shares and replace them with another investment.
Tip 6. There is no need to mention your children by name
In some cases there may not be a need to mention your children by name. The last clause of a will is normally a clause known as the residue clause. Here the person making the will ensures that nothing is left out and creates a catch-all clause at the end to cover any remaining assets. In these types of cases it is normally to insert a clause like “I leave my remaining estate to my children surviving me at the date of death”. Thus it caters to any unfortunate circumstance where any one of your children may pre-decease you.
For more general information, please check out our Frequently Asked Questions (FAQ). This will give you some further information which applies to all wills including this case.