There is a lot to deal with when a marriage comes to an end. The house, finances, pensions and arrangements for children are likely to receive most of the attention, while an existing Will can easily be forgotten.
That can cause problems because divorce has an important effect on a Will in England and Wales, but perhaps not the effect people expect. Getting divorced does not usually cancel the whole Will. Instead, it changes the way certain provisions relating to your former husband or wife operate.
It is therefore sensible to review your Will when you separate and again once the divorce has been finalised.
Does divorce automatically revoke my Will?
No. Your existing Will normally remains valid following divorce.
The effect of divorce is generally that your former spouse is treated as having died on the date the marriage was dissolved for the purposes of gifts made to them in the Will and appointments such as executor or trustee.
Suppose you made a Will while married which appointed your wife as executor and left your estate to her. You later divorce but never update the Will.
If you subsequently die, the Will has not simply disappeared. Instead, the provisions relating to your former wife will generally operate as though she had died before you.
What happens to your estate then depends on the remaining wording of the Will.
What happens to an inheritance left to my former spouse?
A gift to a former spouse will generally fail following divorce unless the Will shows a contrary intention.
What happens to that inheritance next will depend on how your Will was drafted.
A fairly common Will might leave everything to a spouse in the first instance, with children inheriting if the spouse dies first. Following divorce, the gift to the former spouse would generally fail and the provisions for the children may then take effect.
Not every Will contains suitable alternative provisions, however. Depending on its wording, the failure of a gift can have unintended consequences and may result in some or all of the estate being dealt with under the intestacy rules.
The safest approach is to read the Will in light of your new circumstances rather than assuming that divorce has automatically produced the result you now want.
Can my former spouse still be my executor?
Divorce also affects an appointment of a former spouse as an executor or trustee under a Will.
Where the relevant statutory provisions apply, the appointment will generally be treated as though the former spouse had died when the marriage was dissolved.
If you appointed substitute executors in your Will, they may be able to act instead. If you did not, dealing with the administration of your estate may become less straightforward.
Executor appointments are easily overlooked during a divorce because most people understandably concentrate on who will inherit. A Will also needs suitable people to administer the estate and carry out its terms.
What happens while we are separated but not divorced?
This is particularly important.
Separation and divorce are not the same thing.
If you have separated from your husband or wife but the marriage has not legally ended, the rules that apply following divorce will not yet have taken effect.
That means an existing Will leaving assets to your spouse may continue to operate in accordance with its original wording while you remain legally married.
A couple might have been living separately for a considerable period, have completely independent finances and regard the relationship as finished, yet still remain married in law.
If one of them dies during that period, the fact that they were separated does not simply remove the surviving spouse from the Will.
Anyone going through a separation should therefore consider their Will at an early stage rather than waiting for the divorce to be completed.
Can I change my Will before the divorce is final?
Yes, and there may be good reasons to do so.
If your existing Will leaves most or all of your estate to your spouse, you may no longer want those provisions to remain in place during what could be a lengthy period of separation and divorce proceedings.
A new Will can reflect your current wishes about beneficiaries and executors.
There are, however, wider financial issues that can arise during divorce, and changing a Will does not determine how matrimonial assets will be divided between the parties. If divorce proceedings and financial arrangements are ongoing, your estate planning should be considered alongside the advice you are receiving about the divorce itself.
What if I die before the divorce is completed?
If you die while you are still legally married, your spouse’s position can be very different from what it would have been had the divorce already been finalised.
Where there is an existing Will benefiting the spouse, those provisions may still apply.
If there is no valid Will, the intestacy rules can also give a surviving husband, wife or civil partner inheritance rights. Separation alone does not give an unmarried status for these purposes.
This is one reason why reviewing a Will should form part of the practical work that follows a separation, particularly where the relationship has ended but formal divorce proceedings may take some time to complete.
What if my Will leaves everything to my spouse and then to my children?
Many married couples have Wills structured in this way.
After divorce, the gift to the former spouse will generally be treated as though that person had died when the marriage was dissolved. The next provisions in the Will may therefore become important.
If the Will says that the estate passes to the children if the spouse has already died, those provisions may operate following the divorce.
The precise outcome depends on the wording of the Will. Older Wills, homemade Wills and documents prepared around previous family circumstances should be checked rather than relying on a general rule.
There may also have been significant changes since the Will was made. Children may now be adults, grandchildren may have been born, property ownership may have changed and the people originally appointed as executors may no longer be appropriate.
What happens if I remarry after my divorce?
Remarriage is another reason to review your Will.
In England and Wales, marriage will usually revoke an existing Will unless that Will was made in contemplation of the particular marriage.
This can have significant consequences for somebody who has divorced, made a new Will for the benefit of their children and then later remarries.
If the existing Will is revoked by the new marriage and no replacement is made, the eventual estate may be distributed under the intestacy rules rather than according to the arrangements contained in the previous Will.
This is especially important for blended families. Somebody entering a second marriage may want to provide for their new husband or wife while also making sure children from an earlier relationship are included in their estate planning.
Those wishes need to be reflected in appropriate arrangements rather than relying on an old Will.
What about jointly owned property?
Changing your Will does not necessarily change what happens to every asset you own.
A jointly owned property held as Joint Tenants will normally pass to the surviving joint owner through the right of survivorship when one owner dies. That transfer takes place outside the Will.
Following a separation, it is therefore worth checking how property is owned as part of the wider review of your affairs.
The same principle applies to other assets and arrangements which may pass outside the Will. Estate planning after separation should look at the overall position rather than treating the Will as the only document that matters.
Do I need a new Will after divorce?
There is no rule requiring everybody to make a new Will simply because they have divorced. The existing Will may still be legally valid and, depending on its wording, may continue to distribute the estate in a way that broadly reflects your wishes.
In practice, though, divorce is a significant enough change in personal and financial circumstances that reviewing the Will makes sense.
The beneficiaries may need changing, different executors may be more appropriate and arrangements concerning children or property may need to be reconsidered. A new relationship or plans to remarry can introduce further issues.
It is usually much easier to deal with these questions while you are able to explain exactly what you want than to leave your executors and family trying to interpret an old Will after your death.
Reviewing your Will after a relationship ends
A Will prepared during a marriage reflects a particular point in your life. Once that marriage ends, there is a good chance that at least some of the assumptions behind the Will will have changed.
The legal effect of divorce deals with certain provisions involving a former spouse, but it does not rewrite the rest of the document around your new circumstances.
If you are separated, going through a divorce or have recently divorced, reviewing your Will allows you to check who would inherit, who would administer your estate and whether the arrangements still make sense for your family.
AHJ Wills & Estates helps individuals and families across Sheffield, Rotherham and the surrounding areas prepare and review their Wills following changes in their personal circumstances.
If your relationship has changed since your Will was written, it is worth checking what the document would actually do if you died today.
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