The Impact of Divorce on your Will

What is the Impact of Divorce on your Will?

Divorce can be a life altering event that affects many aspects of your personal life and financial life. An area that can be overlooked in the aftermath of a divorce is your estate planning, in particular your Will. 

A Will is a legal document that outlines your wishes in relation to the distribution of your estate after your death. 

Under the Wills Act 1837 (as amended by the Administration of Justice Act 1982) a decree absolute of divorce or the final order in a civil partnership dissolution has two effects on an existing Will: 

1. Any gift to a former spouse is treated as if they had died on the date of the divorce. 
2. Any appointment of the former spouse as executor is also treated as lapsed. 

What about the period between separation and divorce?

This can be the most dangerous lap.  Legal separation does not affect a Will.  The Will is only affected after the divorce is final i.e decree absolute/final order which triggers the statutory changes.  During the time between separation and finalising the divorce any existing Will you have in place remains fully in force.  If you were to pass away during that period a separated spouse can inherit your entire estate if that is the way your Will was prepared.

What are the risks of not updating a Will after divorce?

If the former spouse was your only executor, their removal leaves the Will without an executor.  The court would appoint an administrator instead, in turn this could add extra costs and delays to the distribution of your estate. 

Your residuary estate could fall into the wrong hands.  If your Will leaves everything to your spouse in the first instance then in the second instance to your children, divorce would cause the gift to fail and then the residue is passed to children.  This may be totally fine, but it may not be what you want.  If there is no substitution provision, the gift may fall into intestacy. 

Does a remarriage affect a Will?

The simple answer is Yes.  Any remarriage automatically revokes an existing Will.  Marrying again creates a completely clean slate so to speak.  If you were to remarry without preparing a new Will, you would then die intestate.  Your estate would pass under the intestacy rules, this could potentially exclude children from a previous relationship. 

If you would like to discuss the preparation of a Will, or amendments to your existing Will, our private client team is here to provide advice and assist you with deciding how to proceed.