The answer to this question all boils down to how the separation process happened.

There are two ways in which you can obtain a personal separation: through a court judgment or through a notarial contract of personal separation, which trigger different processes.

The court judgment

When a married couple cannot reach an amicable agreement, the only way they can separate is through a court judgment.

This means going to court, engaging lawyers and finally, after some time, usually years, the judge will decide on the manner in which the couple can separate.

When delivering judgment, it is highly unlikely that a judge will delve into succession matters. The judge would usually focus on the children, if any, and their custody and maintenance, as well as the property the couple jointly owns.

Important considerations will be taken into account and finally the judge can make a final decision.

So when a court issues a separation judgment, it’s crucial to visit a notary soon after to create a new will. If you don’t do this and die intestate (without a will), your ex-spouse will have the right to inherit your assets alongside your children, if you have any.

The contract of personal separation

Most couples separate through a notarial contract of separation. With this type of contract, both parties can renounce their inheritance rights and revoke any previous wills.

Even if your separation contract includes this provision, it’s still important to visit a notary to create a new will and specify how you want your estate to be distributed.

If the separated spouse has no children, you can leave your belongings to anyone you choose without restrictions. However, if there are children and you don’t create a will before passing away, the law will protect your children, ensuring they inherit everything you owned at the time of your death.

So why should I bother with a will if my children will still inherit what I own?

It’s very simple: you will be signing a will to simplify your children’s life.

If a parent leaves a will, the children won’t have to go through the lengthy and tedious process of going to court to apply for an Opening of Succession. This procedure can take between three to six months, and basically, it is the judge who determines who the legal heirs are.

This document, issued by the court, has the same effect as a will. Therefore, it’s much easier to sign a will and have peace of mind knowing that your affairs are in order.

The information presented in this article is provided by the Notarial Council for general informational purposes only – for legal or professional advice contact your notary. If you have any questions you wish to ask the Notarial Council of Malta send any e-mail to notariesofmalta@gmail.com