Does divorce revoke a Will?
Married couples often leave a large part of their estate to their spouse when they make a will.
That makes sense when you are happily married and want to ensure your spouse is protected if you pass away.
But what happens if your relationship breaks down and you get divorced?
Here is what happens to a will after divorce.
How does divorce affect a Will?
When you get divorced, you may assume that any will naming your former spouse is automatically cancelled.
Unfortunately, that is not the case.
Any will you made while married usually remains valid after divorce, and most of its instructions still stand.
However, divorce does change how your will operates when you die.
The good news is that your ex-spouse cannot inherit from your estate unless your will explicitly says otherwise.
The downside is that your estate may not be distributed in the way you would want.
#1 Your ex-spouse is automatically removed as a beneficiary
The most significant effect of divorce on your will is that your ex-spouse is treated as though they had died on the date the divorce was finalised.
This means anything they were due to inherit will pass to the next beneficiary named in the will.
That may not cause a problem if your will names several beneficiaries. But if your former spouse is the only beneficiary, which is often the case, it creates a serious issue.
In that situation, your estate may be dealt with as though you had died without a valid will, known as dying intestate. Your estate would then be distributed under the laws of intestacy.
The rules of intestacy follow a strict order of relatives who can inherit from your estate.
These rules do not take your wishes into account. They only consider how closely someone is related to you.
That means your estate may not go to the people you would choose. For example, a new partner would not inherit under the rules of intestacy.
#2 Your ex-spouse is removed as an executor and/or trustee
Divorce also means your former spouse can no longer act as an executor or trustee under your will.
If you appointed more than one executor, the remaining executors may still be able to administer your estate.
But if your ex-spouse was your only executor, the court may need to appoint someone else.
This can delay the administration of your estate and add stress for your loved ones at an already difficult time.
If you created a trust and named your ex-spouse as the sole trustee, that trust could also fail.
Should I make a new will after getting divorced?
You should update your will whenever your personal circumstances change, and divorce is one of the clearest examples.
Although your will may still be valid after divorce, it may no longer work in the way you intended.
The main reason to make a new will after divorce is to stay in control of who inherits from your estate.
As explained above, if your ex-spouse was your only beneficiary, your estate could end up being distributed under the rules of intestacy instead.
Under intestacy rules, your children would usually inherit your estate. If you do not have children, other surviving relatives may inherit instead. If you have no surviving relatives, your estate could pass to the Crown.
This means your estate could go to relatives you would not have chosen. It also means important people in your life, such as a new partner, close friends, step-children, or charities, may receive nothing.
Making a new will after divorce allows you to:
- Make sure your estate is distributed in the way you want
- Ensure a new partner is looked after
- Provide for your children, including any step-children
What happens to my Will after separation?
Your will is not affected if you separate from your spouse but remain legally married.
This means your spouse may still inherit under the terms of your will.
If you are separated but do not want your spouse to benefit from your estate, it is important to make a new will as soon as possible.
What happens to my Will if I remarry?
If you remarry after divorce, your existing will is usually revoked entirely unless it was made in contemplation of that marriage.
That means you could be left with no valid will at all. If you die without making a new one, your estate will be dealt with under the rules of intestacy.
Those rules may not reflect your wishes.
Depending on your circumstances, your new spouse could inherit all or most of your estate, which may not leave the provision you intended for your children or others.
To make sure your estate is distributed as you want, it is important to make a new will when you remarry.
How do I change my Will?
If you are going through a divorce, separating, or planning to remarry, it is sensible to speak to a solicitor.
They can update your will to reflect your new circumstances and help ensure your wishes are followed.
The Law Superstore connects you with solicitors across England and Wales. Enter a few details to compare prices and connect with professionals who can help you write a new will.
