Divorce is stressful, and the chances are you want to get it out of the way so you can move on with the rest of your life. Division of finances, property and child arrangements are well-known aspects of contention within divorce, but have you considered what it means for your will?
Approximately half of adults have a will, and the prevailing view is that divorce automatically cancels out any will made within the marriage. None of this is true, but certain parts of your will could require updating as you separate.
In this guide, we discuss how divorce impacts your will and what happens to it after your divorce.
Does a divorce invalidate a will?
In short, divorce doesn’t revoke your will, and it doesn’t mean a will from before your marriage automatically comes back into effect. Your current will remains valid, but if you die without changing it, your ex-partner will be treated as if they’d died when the marriage was dissolved (if they are still named in your will).
What does this mean in practice?
If your will leaves your estate to your ex partner and doesn’t reference what happens to your estate if your ex-partner dies, something called the rules of intestacy come into play. These are the same rules that are used if someone dies without having a legally valid will.
The problem here is that if you don’t update your will to reflect your divorce, your estate might be divided in a way you hadn’t intended, impacting dependents, new partners and the rest of your family.
What happens to a will during and after a divorce?
Under English law, your ex-spouse is legally treated as deceased in a will from the date of your divorce. Your original will remains valid during this time.
If you haven’t updated your will, any gifts made to your ex-spouse would be considered void. If there are no other beneficiaries for any share of your will that you assigned to your ex-spouse, it is distributed via the rules of intestacy.
In other words, the will you made during your marriage remains valid even after you divorce. The problem is that if you don’t update your will, you risk your assets being distributed in a way you didn’t expect. Likewise, if you still want to leave a portion of your will to your ex-spouse, you would need to update your will once again to confirm this is still the case despite the divorce.
If you do not update your will following separation but before the divorce concludes, then any assets left to your ex spouse in your will would still be valid. Therefore, it is essential that you review your will and amend where necessary following the breakdown of a marriage to ensure that your will still accords with your wishes.
It’s why solicitors advise all divorcing couples to review their wills and update accordingly.
What to do if your former spouse is an executor of your will
Should your former spouse be an executor of your will, this is automatically revoked under the law in England and Wales. Since the law states that your ex-spouse is legally dead when you divorce, they cannot retain their appointment as an executor of your will.
The problems many don’t anticipate are:
- You may be left with no executor if your ex-spouse was the sole executor, forcing the court to appoint an administrator to deal with your estate.
- Your ex-spouse could be left in control of your estate if you had separated but were not yet divorced at the time of your death.
- If your children are in your will and no new guardian has been appointed, your ex-partner could take charge of the estate on their behalf until they come of age (if your ex partner is their parent).
Avoid these issues by appointing a new executor in your will immediately upon your marriage breaking down. It’s also a good idea to name a substitute in case an executor is unable or unwilling to act as standard.
In terms of your children, if your ex-partner was appointed their guardian, this appointment becomes legally invalid. You should therefore consider appointing another person to take on this role.
If the marriage has irretrievably broken down, then it’s time to consult a solicitor who understands the intricacies of wills and estates. They can ensure that your will properly reflects your wishes and complies with the law.
Can you exclude your spouse from your will if your divorce isn’t finalised?
You may be concerned that contentious divorce proceedings are putting your estate at risk. This is especially true if you’re in a poor state of health or you’re just concerned about preparing for the future.
The law allows you to exclude your spouse from your will before your divorce is finalised. Until you’re legally divorced, your original will remains in effect, meaning your ex-partner could still inherit. Whether you’re married but separated is no different legally than if you were married and still together. You should therefore review and amend your will as soon as a marriage breaks down.
However, disinheriting your spouse while you’re still technically married doesn’t shield you from claims against your estate. Under the Inheritance (Provision for Family and Dependents) Act 1975, divorcing couples can still apply for reasonable financial provision.
It’s the basis of countless will challenges by former partners. That’s why a solicitor is vital for defending yourself against these types of claims and securing the inheritance of your friends and family members.
Updating your will after a divorce
You never know what’s around the corner, which is why it’s strongly advised that you update your will as early as possible. The reasons for this include:
- Your will isn’t automatically revoked by divorce and remains in effect.
- Your will is now outdated, meaning your estate could go in a direction you didn’t intend.
- You want your will to properly reflect your wishes, such as if you enter into a new relationship or you have children with another partner.
The answer may well be to redraft an entirely new will to ensure it properly reflects your new circumstances and any new wishes you might have. Some suggest that you can use a codicil, which is an amendment to your existing will, but these usually don’t properly reflect the significant changes to your personal and financial situation post-divorce.
A specialist wills lawyer will be able to give you the correct advice as to how best to proceed in your circumstances.
Alongside redrafting a new will, it’s also time to review other documents. These include Lasting Powers of Attorney, life insurance policies and pension beneficiaries.
When dealing with issues as complex as divorce and inheritance, the law can be confusing. Trying to manage it yourself during this stressful time isn’t recommended. Bring clarity to the situation and ensure your assets are secured by contacting an experienced family law solicitor from VM Family Law for your free consultation today.