Should I write a Will if I’m undergoing divorce proceedings or wait until my divorce is finalised?

We understand that going through a divorce can be one of the most challenging periods in your life. However, it is more important now than ever to ensure you have a valid Will in place, before the divorce proceedings are completed.

You are still legally married while undergoing divorce proceedings. This means that, by default, if you pass away without a Will, the Intestate Succession Act will apply. Under this Act, with the exception of a decree of Judicial Separation (which must be filed in court), your spouse will inherit half of your estate if not all of it (if you have no issues nor parent).

To safeguard your assets and ensure they are distributed according to your wishes, it is advisable to update or draft a Will as soon as possible. Additionally, you should also update your CPF nomination and insurance nominations.

Joint Assets

Another important consideration is any assets you currently jointly own with your soon-to-be-ex-spouse. Generally, for joint assets (such as properties held under joint tenancy), the right of survivorship applies. This means that if one owner passes away, the surviving joint owner(s) will automatically inherit the deceased’s share of the property.

To prevent this from happening, you will need to change the type of ownership from joint tenancy to another form, such as tenancy in common. This process cannot be accomplished through a Will (including any testamentary trust), as the right of survivorship takes precedence upon death. To avoid disputes and ensure your share is distributed according to your wishes, it is advisable to sever the joint tenancy while you are still alive.

Excluding Your Spouse from Your Will

Within your Will, you should clearly state that you are excluding your soon-to-be-ex-spouse as a beneficiary. This ensures that your estate is distributed according to your current wishes and not based on outdated arrangements from before your divorce.

Appointing Guardians for Minor Children

If you have children, your Will allows you to appoint guardians for any minor children. However, it is important to note that the surviving parent of the child will, by default, remain the child’s legal guardian. Any guardian you appoint through your Will would act jointly with the surviving parent. This applies even after the divorce.

If you are adamant about preventing the other parent from automatically becoming the child’s guardian, you should consult a lawyer to explore the necessary legal steps to achieve this.

Conclusion

Writing or updating a Will during divorce proceedings is a crucial step in protecting your assets and ensuring they are distributed according to your wishes. Waiting until the divorce is finalised could leave your estate vulnerable to unintended claims. By taking proactive steps now, you can safeguard your financial interests and prevent unintended people from benefitting from your untimely demise.