Many people assume that getting divorced cancels out any Will they made during their marriage. This isn’t the case, and failing to update your Will following divorce could have serious consequences for your estate.
Here we answer some frequently asked questions about what divorce and separation means for your Will, and how to make sure everything’s in order.
If you’ve recently divorced or dissolved your civil partnership, updating your Will should be a priority.
Does Divorce Mean My Will Is Automatically Revoked?
Divorce doesn’t revoke a Will, nor does it mean your Will from before you were married comes back into effect. Your current Will remains valid, but for inheritance purposes, your ex-partner is treated as if they had died when your marriage or civil partnership was dissolved.
This can have a serious effect on your estate. If your Will doesn’t specify what happens in the event of your ex-partner’s death, the rules of intestacy could apply. These rules come into effect when someone dies without a valid Will, or sometimes when the original beneficiary of a Will dies and the Will doesn’t include details about what should happen next. This is known as intestacy and it dictates who can inherit from your estate.
Won’t My Original Will From Before I Was Married Come Back Into Effect?
No – it’s important you don’t rely on this. Marriage revokes any previous Will you had, but divorce doesn’t have the same effect.
If you divorce, your Will from the marriage remains valid, but your ex-spouse is now treated as if they were dead. This means part of your estate could fall under the ‘rules of intestacy’, which come into effect if someone has died without leaving a Will. This could overrule any plans you had for your estate and leave your loved ones without anything, or with a smaller share than you might want.
If you haven’t updated your Will to reflect the fact you’ve divorced, your estate might be divided up differently to how you intend. This could jeopardise any inheritance you’ve planned for the rest of your family and mean that new partners or dependants aren’t provided for.
Why Should I Make A New Will?
It’s always a good idea to update your Will when your personal circumstances change, especially for something as life-changing as a divorce or dissolution of a civil partnership.
Making a new Will after divorce allows you to:
- Make sure your estate is divided up in the way you want
- Ensure your new partner is provided for
- Make sure all your children are provided for
If you don’t update your Will after divorce, your estate could be treated as if you don’t have a Will at all. This would mean it is subject to the ‘rules of intestacy’, which take effect when there’s no Will. These rules may not reflect your wishes and could mean your loved ones aren’t provided for in the way you would like.
Making a new Will can also help prevent potential claims being brought against your estate under the Inheritance Act. An ex-spouse can, in some cases, make a claim for financial provision, but having an up-to-date Will can help plan ahead to try and prevent a claim from being successful.
What Happens If I Don’t Make A New Will?
If you don’t make a new Will, you can’t be sure your loved ones will be provided for. Even if your divorce is amicable and you and your ex-partner agree about how your property will be shared, there’s no legal guarantee unless you write it in a Will.
Anything you’ve left them in your original Will is revoked, but this doesn’t mean that part of your estate will automatically revert back to your other beneficiaries. Because an ex-spouse is treated as if they had already died, part of your estate could now be treated as if you hadn’t made a Will.
Other problems could arise if you’d named your ex-partner as an executor in your Will or granted them Lasting Power of Attorney. Both appointments will be revoked and you’ll need to make other arrangements.
Contact us today for more information about making a new Will, naming a new executor, or make a new Lasting Power of Attorney.
Does My Ex Have Any Claim On My Estate?
This depends on the terms of your divorce and your financial settlement. Ex-spouses can make a claim on the estate if they can show that they were being financially maintained by the deceased.
If you’re financially maintaining your ex-partner after you’ve divorced (i.e. if you pay them maintenance), and you don’t include them in your Will, they could potentially make a claim under the Inheritance Act.
If you don’t want your former spouse or civil partner to inherit from your estate after your death, unfortunately there’s no certain way to prevent it. The best thing to do is to make sure your executors are prepared in case there is challenge, and write your Will in a way that gives them flexibility to negotiate with your ex-partner if necessary to protect the interests of your other beneficiaries.
Can A Clean Break Order Help?
A financial settlement order – also known as a clean break order – is an agreement that means neither party has financial ties to the other once the divorce has gone through. You won’t owe spousal maintenance or any other kind of financial provision.
Clean break orders can be useful to help protect your estate against future claims under the Inheritance Act, but they won’t suit every situation – especially not if there’s young children involved who still need to be provided for.
They’re also no substitute for a new Will. In order to make sure your estate is still going to be divided up the way you want after your death, it’s essential to have an up to date Will.
How Can I Ensure My Children Still Get An Inheritance If I’m In A New Relationship?
If you’re in a new relationship and you want to ensure your children from an earlier marriage still get their inheritance, it’s important to make sure your Will is up to date.
If you have step-children in your new relationship, and you don’t update your Will, your estate could pass to them after your and your partner’s death. You must make sure your Will is structured to reflect what’s best for your estate and the people you want to inherit from it.
One option would be to use a will trust to provide for your current partner during their lifetime, while ensuring your assets will ultimately pass to your children. Read more about will trusts.
It’s important to note that if you make a new Will with your partner while you aren’t married, but then you later marry, this Will is revoked, unless it is made in anticipation of that marriage. If there’s any change in your marital status, it’s crucial you revisit your Will to make sure it still benefits the people you want it to.
I’m Still Married But Separated – Can I Exclude My Spouse From My Will?
Yes – you’re allowed to leave your estate to whoever you choose. However, even if you’re separated, your spouse could make a claim on your estate under the Inheritance Act.
Claims against an estate take time and are often costly. To protect the interests of your other beneficiaries, it’s important to prepare a Will that gives your executors room to negotiate with your spouse if necessary.