What happens to your will if you get divorced or remarried?

If you get divorced, your ex-spouse is treated as if they have died and are no longer a beneficiary of your estate. When you marry or re-marry, your will is automatically revoked unless it specifically includes an ‘Intention to Marry’ clause, which refers to your partner by name. This is why it’s very important to keep your will up-to-date when you have a change in circumstances.

However, it’s crucial to make sure that you update your will at the right time. For example, if you were to update your will and pass away before your divorce is finalised, your spouse may be able to pursue a claim against your estate. This could cost your estate tens of thousands of pounds in legal fees in the event that this goes to court.

What rights do you and your (ex-)partner have:

Everyone ordinarily resident in England and Wales has a right known as ‘testamentary freedom’ which is the legal right of a person to dispose of their property as they wish after their death. This differs from civil law jurisdictions in Europe and elsewhere in the world, where your immediate heirs may have rights to mandatory succession. 

There are however some exceptions, such as those laid out in The Inheritance Act 1975. This Act allows certain people, such as a spouse, children, and parents, to make a claim against a deceased person's estate if they feel that they have not been adequately provided for. For example, if you are separated from your spouse but not yet divorced when you pass away, your spouse may rely on this Act to make sure that they are no worse off than they would be under a financial settlement achieved through divorce. 

Your ex-spouse may also be able to claim for a larger share of your estate if they can demonstrate that their financial needs are greater as a result of you passing away. For example, they may incur higher childcare costs as a result of you not being available to look after your children.

If you’re getting divorced:

We generally recommend delaying making any changes to how your estate is divided among beneficiaries until after your divorce is finalised. However, if your ex-partner is listed as an executor, you may wish to update this before the divorce is finalised should you no longer trust them with this responsibility.

If you do not wish your ex-spouse or civil partner to inherit from your estate at all, unfortunately there is no way to achieve this with absolute certainty. Even if you specifically exclude them from your will, they may still be able to challenge your will in court, especially if you are making ongoing spousal maintenance payments as part of a financial settlement.

In this case, your best option may be to create a discretionary trust in your will and request that your trustees negotiate a settlement with your ex-spouse or civil partner. You would need to grant your trustees the power to sell assets and/or use the money from your residuary estate to pay your ex-spouse or civil partner a lump sum.

If you’re getting remarried:

If you start a new marriage or civil partnership and you have children from a previous marriage, you should make sure that your will is updated, given that marriage revokes most existing wills. Under the rules of intestacy, your estate could bypass your children and form part of your partner’s estate if you and your partner pass away in either quick succession or at the same time (in which case, the youngest partner is presumed to have survived the older partner).

You can make sure that your children from your previous marriage inherit your estate by writing a will that specifically leaves them a gift or a share of your estate. You may also wish to set-up a life interest trust that leaves your interest in any property to your children, but gives your partner the right to occupy or receive income from the property during their lifetime or based on specified conditions, such as if they move home or remarry. This can prevent what is known as ‘sideways disinheritance’ when a new partner inherits at the expense of the deceased partner’s children, who may not be included in the new partner’s will.

It is important to think carefully about your wishes and to make sure that your will reflects them. By making a new will, you can ensure that your assets are distributed according to your wishes and that your loved ones’ interests are protected.