Updating your will after divorce

If you made a will in England and Wales whilst you were married, getting a divorce can change the provisions in your will. 

That is why our expert team suggest that as part of your divorce, you should have a look at your will and amend it to suit your new wishes. 

Is my will still valid after divorce and who gets my assets? 

A divorce does not cancel an existing will; any will made before the divorce would still be considered valid. However, if your former spouse is mentioned in the will, they will be treated as deceased and will not receive any part of your estate.

If your will only left everything to your spouse with no further provisions this will mean that your will would default to the laws of intestacy, i.e. as if you had no will. Therefore, your assets and estate will go to whomever is deemed by law to be the next of kin. Read more about the intestacy rules here. 

If this occurs, there is a chance that your estate may not be distributed according to your wishes. Therefore, it is crucial to update your will promptly following a divorce or other major life change. There is also the possibility your children (if you have any) will inherit, but if they’re minors (i.e. below 18) their mother/father who survives you (and may be your ex) will administer the Estate on their behalf and take charge of your money etc. It may be a better idea to ensure that you have Executors who you trust to look after your children instead. 

While divorce can be a challenging, you might want to consider updating your will during the divorce process to avoid your spouse inheriting from your estate. For anyone with less than £322,000 because your spouse will inherit everything. Anyone with over that amount of money will need to have children for the spouse not to inherit everything, but your spouse will take a lot of the Estate. 

If, for some reason you want your ex to inherit a portion of your estate or wish to include someone new in your will, like a current partner, you must revise your existing will., or create one. Remember, there is no such thing as “common law” wives or husbands. It does not matter how long you have been someone’s partner, you need to be married to have legal rights to Inheritance. Otherwise, the best you will have, is the potential to make a claim against their Estate, which is not in anyone’s best interests. 

What happens to my executor? 

If your will designated your ex-spouse as an executor along with others, the remaining executors can still fulfil their roles. However, if your ex was the sole executor named, and no one was named to fill that vacancy in the event they died before you,  then the beneficiaries under the Will or intestacy rules can apply to administer the Estate. However, if you have children under 18 who you wish to inherit, someone will have to fulfil the role of Administrator on their behalf. In the absence of any Executors appointed by you the mother/father of the children would be able to apply for a Grant and take charge of administering the Estate. If the idea of your ex having this power is unappealing, then you must have a Will clearly stating who you want to be the Executors and who should take responsibility for the children.

I don’t have a will yet, what does this mean for my divorce? 

If you have not created a will yet and you are in the process of divorce you might want to consider doing so early on in the divorce process.

Having a will can guarantee that your finances and assets, including those divided during a divorce, are inherited by your selected beneficiaries and, if those are your children, that your children are cared for after your passing – subject to the points raised above.

During the divorce process, it is a good idea to have a Financial Consent order, or Consent Order from the Court outlining who receives particular assets and that no party may make a claim against the other’s Estate. Without an order barring a claim against an Estate, it is still possible for your ex-spouse to make a claim against your Estate. 

What happens to my children? 

If you have children, it's important to review your decisions regarding who you want to care for them. If you had chosen your ex-spouse as the trustee of a trust for your children or as their guardian, these arrangements would become void after a divorce. The surviving parent of a child always has parental responsibility (unless removed by Court Order) and therefore you cannot oust their authority to look after their child/children by appointing Guardians. However, you can appoint Guardians to look after your children in the event that their mother/father has died before you. The fact that you appointed that person/those people to be guardians in your Will is strong evidence for the Court later on that you believed them to be the best people to do the job. 

What happens to my will if I remarry? 

Marriage revokes a Will as the law currently stands. They are considering reforming this, but at the date of this article, it remains the law that marriage revokes a Will unless the Will states that it is made in contemplation of marriage and contains a clause to the effect that it is not to be revoked by the marriage. Marriage also has a number of tax benefits for Inheritance Tax purposes, and it can therefore be a good time to review existing Wills to make sure they are as tax efficient as possible. 

If you are cohabiting with a new partner without being married, there is no automatic right to inherit from one another. To ensure your assets are distributed according to your wishes, it is essential to create a will outlining your intentions. Without that tax advantages that marriage brings, being unmarried can lead to Inheritance Tax being payable on jointly owned assets which would not be the case if you were married. 

How can Hegarty help? 

It's advisable to create a new will promptly as soon as you commence divorce proceedings, particularly if your former partner was a beneficiary or a trustee.

You don't need to wait for the final divorce order to create a new will. You can do so any time.

For further guidance on how marriage, civil partnership, divorce, or separation might impact your will, contact our expert team for friendly and helpful legal advice.