Divorce and dissolution do not revoke a will – it remains valid. However, your ex-spouse or civil partner will not inherit anything that is bequeathed to them, as, for inheritance purposes, they are treated as if they had died when your divorce or dissolution becomes final.
If you do not update your will after you divorce or dissolve your civil partnership, your estate could be divided in a way that you would not wish in the event of your death.
Who will inherit if I don’t update my will?
If you don’t update your will, any gifts or bequests left to your ex-spouse or civil partner will pass to the next beneficiary, according to your will. For example, you may have specified that if your spouse or civil partner is dead, their share of the estate passes to your children or your family if you have no children.
However, if you have not specified what should happen in the event of your ex’s death or had left everything to them, not naming any alternative beneficiaries, your estate will be treated as if you have died intestate. In England and Wales, there is a strict set of statutory intestacy rules that dictate how your estate will be divided and in what order, in the absence of an effective will. Under these rules, beneficiaries can only be direct family and not unmarried partners or friends. This is probably not what you would have wanted. Get more information about intestacy on our web pages.
What if my ex was named as an executor or trustee in my will?
Upon divorce or dissolution of civil partnership, your ex cannot act as an executor or trustee. These appointments will be revoked. The same goes if your ex is named as an attorney in a power of attorney.
If you have named another executor and you have not updated your will, they will still be able to act in the event of your death. If you do have a will, but haven’t named another executor, another person entitled to apply would apply to become an executor. This is not straightforward, and you may need professional help if you are applying to be an executor in this situation. The appointment will be made based on who the family members are and if there are any minor children.
What if I have a new partner?
Making a new will gives you the opportunity to provide for your new partner and any stepchildren. If you don’t include a partner to whom you are not married or in a civil partnership in your will, they are not entitled to inherit any of your estate.
Note that if you do make a new will before you are married to or in a civil partnership with your new partner and then you later marry them, that will is revoked, so you will need to update your will or you will be treated as if you have died intestate.
How do I ensure that children from my previous marriage will benefit from my estate?
If you remarry and have stepchildren from that marriage, they could inherit in the same way as your children. If you don’t want that and want to ensure that children from a previous marriage inherit your estate, you will need to ensure that your will is up to date and reflects this. You may be able to set up a trust to allow your new spouse or civil partner to benefit from your estate, for example, live in your home, whilst they are alive, with the estate reverting to your children when your new spouse or civil partner dies.
Do I have to provide for my ex in my new will?
No, you do not have to provide for your ex in your new will, although if you are paying maintenance to them, it is possible that they can make a claim under the Inheritance Act if they can successfully show that they were dependent upon you. There is no guarantee that you can avoid this, but you can speak to our family law experts and our private client experts to ensure that any maintenance order and your will are structured in the most effective way possible.
Whilst they are no substitute for a will, a ‘clean break order’ financial settlement in divorce proceedings could be useful in helping to protect your estate against claims unless there are any young children to support.
I had a will before I was married/in a civil partnership, won’t it come back into force upon divorce/dissolution?
No. Marriage revokes any previous will. It cannot be resurrected. Your existing will remains valid, although the wishes within it will be executed as if your ex-spouse or civil partner died when your divorce was finalised.
Making a will ‘in contemplation’ of marriage or civil partnership
You can insert a clause into your will saying that you have made it ‘in contemplation’ of marrying or entering into a civil partnership with a certain person within a certain amount of time. This will mean that when the marriage or civil partnership takes place, the will is not revoked. Without this clause, when you marry or enter into a civil partnership, your previous will is revoked and in the event of your death, you will be deemed to have died intestate. You should take specialist advice when making this sort of will to ensure that it is valid.
What if I separate and don’t get a divorce or dissolution?
If you separate and do not divorce or dissolve your civil partnership, your will is still valid and your spouse or civil partner will still inherit according to your will – or to the rules of intestacy if you have not made a will.
You will need to update your will and exclude your spouse or civil partner if you don’t want them to inherit. Please note, however, that even if you exclude your spouse or civil partner from a new will, they may still be able to make a claim under the Inheritance Act
How can Graysons help?
If you are in the process of getting a divorce or dissolving a civil partnership, or you are planning to remarry, speak to our private client advisors now. They will be able to advise you on the process of making a new will to ensure that your family’s future is protected as you would wish.
Author: Anne Rogers, partner and head of Graysons’ private client team