Divorce and Separation
In England and Wales, if you make a Will while you're married and then you get divorced, your divorce can alter the terms of your Will.
Although your Will does remain valid after divorce, your ex-spouse will no longer be able to benefit from it, unless you have expressly stated otherwise. They will also no longer be able to act as an executor or trustee under your Will.
Who will inherit from me instead?
Many people who make 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 to end your marriage, the terms of your Will automatically change. Anything that you have left 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”).
In 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. So, it's important to update your Will as soon as possible.
Who will act as executor?
If your Will named your ex-spouse as an executor, but it also named other executors, they will still be able to act. If your Will only named your ex as executor, then an alternative executor 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 terms of 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 remarry, any existing Will you have in place will be revoked altogether, unless you have expressly stated in the Will that you don't want this to happen. If you have made a Will “in contemplation of marriage” and have named the person you intend to marry, 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 when you get married.
If your Will is revoked by marriage and you die without putting a new Will in place, then your estate will be dealt with as if you had died intestate. 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.
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