In England and Wales, if you made a will while you were married and then you get divorced, your divorce can alter the terms of your will. Although your will remains valid after divorce, your ex-spouse will no longer be able to benefit from it, unless you have expressly stated otherwise. They will also no longer be able to act as an Executor or Trustee under your will. However, any will is unlikely to be suitable for your new situation, it is worth considering making a new will to reflect your new life situation.
Separated, but not divorced
If your marriage has broken down, but you are not divorced yet, it is important to be aware that, from a legal standpoint, you are still legally married, so nothing has changed where inheritance law is concerned.
Your separation has no legal effect on a will, your spouse will still inherit under any will, no matter how long you have been separated; making a new will should be a priority to reflect your new situation.
If you have no will at all (known as being intestate) your spouse will still inherit from you under what are known as the intestacy rules, and your estate would pass to them if there were no will.
How the intestacy rules would affect you depend on your own circumstances, our guide to the intestacy rules can be found The-Rules-of-Intestacy-2020.pdf (thursfields.co.uk). Dying intestate will result in the law automatically determining who will inherit your estate and look after your children, in most cases this will mean benefits your spouse and will preclude you from benefiting friends or charity, which is unlikely to be your intention.
If you are in a new, serious, relationship after parting from your spouse, consider making a will that provides for your new life. Unmarried partners (sometimes wrongly called ‘common-law’ partners) cannot inherit from you, unless you make a will providing for them. Without this provided in a will, they may need to go to court to get financial provision from your estate.
After the divorce
Once you have received the decree absolute, it is likely that financial matters have been resolved between you and your former spouse. Regarding your estate, it can still get complicated, though, and will need careful consideration.
If you made a will before your divorce, this will be still legally valid, and this creates a number of problems. Many married couples appoint each other as the executors and beneficiaries of a will, either alone, or to share with the children.
The divorce has the effect of removing the former spouse from the will completely, while the appointment of other executors and beneficiaries remain valid.
If your former spouse was the main beneficiary of your estate, this will now not go to them and, depending on the circumstances, your estate may pass under the intestacy rules, which means your wishes may not be carried out as to who gets the estate.
Remarrying after divorce
If you remarry after your divorce, any existing will you have in place will be revoked altogether, unless you have expressly stated in the will that you do not want this to happen. If you have made a will “in contemplation of marriage” and have named the person you intend to marry, your will will not be revoked when you get married. However, if there is no mention of the intended marriage in your will then this will automatically be revoked when you get married.
If your will is revoked by marriage and you die without putting a new will in place, then your estate will be dealt with as if you had died Intestate. This will usually stipulate that everything goes to your new spouse. Children from previous relationships may not inherit from you.
If you are in the process of getting a divorce, or if you are divorced and you are planning to remarry, then it is important to understand the impact that this will have on your existing will. At Thursfields we recommend that if any of these circumstances apply to you that make a new will to ensure that your wishes are recorded and clear about how you want your estate to be distributed – for more information or to book an appointment please contact our Divorce and Wills Solicitors on 0345 20 73 72 8 or email@example.com