What Happens to My Will after Divorce?
06 April 2018
In England and Wales, if you make a Will while married and then get divorced, your divorce can have a direct impact on the terms of your Will.
While your Will does remain valid, your ex-spouse would no longer be able to benefit from it unless you have expressly stated otherwise. They would also no longer be permitted to act as an Executor or Trustee of your Estate.
Who Will Inherit from Me Instead?
Many people who have made a Will while they are married would have named their spouse either as a Beneficiary, Trustee or Executor.
Once a Decree Absolute has been issued, anything that you have gifted to your ex-spouse in your Will would be dealt with as if they had died on the date that your marriage legally ended. As a result, whatever they were set to inherit would then be passed on to the next beneficiary who is entitled to it, in line with the terms of the Will. If everything had been left to your spouse, with no other beneficiaries named, then your Estate would be dealt with as if you had died without a valid Will in place at all (known as dying “intestate”).
Under these circumstances, the law will decide who inherits what from you, under the Rules of Intestacy. These rules place relatives in order of priority and the rules are strict, sometimes not providing for modern family relationships. If this happens, there is a risk that your Estate could end up not being distributed in the way that you would have wanted.
Who Will Act As Executor?
If your Will named your ex-spouse as Executor, this will also be revoked after a Decree Absolute has been issued. If your Will named more than one Executor, then the other Executor(s) named will still be able to act. If your Will only named your ex as Executor, then an alternative will be appointed by the Court. This will usually be a friend or family member.
What Happens to My Will after Separation?
If you separate from your spouse but you are still legally married, then your Will remains valid and your spouse will be entitled to inherit as set out in the Will.
If you don’t want your spouse to benefit from your Estate, but you are not legally divorced, then it’s important to write a new Will stipulating your new wishes.
What Happens to My Will if I Remarry?
If you then remarry, your original Will is revoked in its entirety, 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”, naming the person you intend to marry, then your Will won’t be revoked when you tie the knot. However, if there is no mention of the intended marriage in your Will then this will automatically be revoked at the time that you marry.
If you die without putting a new Will in place, then your Estate will be dealt with as if you had died Intestate, and everything you own will be distributed in line with the Rules of Intestacy. This will usually stipulate that everything goes to your spouse.
How Can I Prepare?
If you are in the process of getting a divorce, or if you are divorced and you’re planning to remarry, then it’s important to understand the impact that this will have on your existing Will. It may need to be updated to ensure that your wishes are consistent with the law and clear about how you want your Estate to be distributed.