Divorce does not revoke a will in England and Wales. Instead, once the divorce is finalised, the will usually remains valid, but your former spouse or civil partner is treated as if they had died before you. This means that gifts left to them, or any appointment of them as an executor or trustee, will usually fail unless your will clearly says otherwise.

The rest of the will remains valid. However, this can still create problems. If your spouse was the main beneficiary, executor, trustee or part of wider arrangements for your children, property or finances, your will may no longer work in the way you intended.

If you’re separating or going through divorce, it’s important not to assume your will has already changed. Until the divorce is finalised, your spouse may still inherit under your existing will.

In this guide, the divorce solicitors at Switalskis explain how divorce affects an existing will, when these legal changes take effect, and why reviewing your will is an important step during or after divorce proceedings.

When does this change apply during divorce proceedings?

The legal position only changes once the divorce is finalised by the court. Until the final order is granted (previously known as the decree absolute), you and your spouse remain legally married.

This means that during separation, or while divorce proceedings are ongoing, any provisions in your will that benefit your spouse may still apply. If your will leaves assets to them, names them as an executor or gives them a role in managing money for your children, those arrangements may still take effect if you die before your divorce is complete, unless you update your will.

This is one of the main reasons to review your will as soon as divorce becomes likely. There can be a period where your intentions have changed, but the legal documents that deal with your estate have not. Taking advice early can help you avoid unintended outcomes if one person dies before the divorce is finalised.

What happens after the final order?

Once the final order has been granted, divorce does not automatically cancel the whole will. Instead, the will is read as if your former spouse or civil partner had died before you.

This usually means:

●      gifts left to your former spouse no longer take effect

●      their appointment as executor or trustee usually ends

●      any alternative beneficiaries named in the will may inherit instead

●      the rest of the will remains valid

This rule can provide some protection, because it usually stops an ex-spouse from inheriting under an old will after divorce. However, it is not a substitute for making a new will or reviewing your estate plan. If your will was built around your marriage, the removal of your former spouse may leave gaps or create results that no longer reflect your wishes.

Can your ex-spouse still benefit from your will after divorce?

In most cases, once the final order is granted, your former spouse or civil partner will no longer benefit from gifts left to them in your will. They will also usually stop being treated as an executor or trustee.

However, there can be an exception if the will clearly states that they should still benefit, or continue in a particular role, after divorce. This is sometimes called a contrary intention. It means the wording of the will shows that you wanted the provision to continue even if the marriage or civil partnership ended.

This is uncommon, but it is one reason we advise people not to rely on general assumptions about how divorce will affect their will. If your will was written during your marriage, it’s sensible to have a specialist lawyer review the wording carefully so you can fully understand what will happen after the final order is granted.

What happens to gifts left to a former spouse?

If your will leaves money, property or another asset to your former spouse, that gift will usually fail once the divorce is finalised. What happens next depends on how the will was written.

If your will names an alternative beneficiary, the gift must pass to them instead. If not, the gift forms part of the residue of your estate and should be shared between the remaining beneficiaries. As such, if there is no clear alternative, that part of your estate could pass in a way you did not expect.

Many married people write wills that depend heavily on their spouse. They may leave most or all of their estate to them, appoint them as executor, or trust them to manage assets for children. After divorce, those arrangements may no longer reflect your current circumstances.

Why should you review your will during divorce?

Divorce can change your financial situation, your family arrangements and who you want to benefit from your estate. Your existing will may remain valid, even if it does not reflect your current wishes.

You may need to think about:

●      Who should inherit your assets

●      Who should act as executor

●      Whether your children’s inheritance is properly protected

●      Whether a new partner should be included

●      How your property is owned

●      Whether your life insurance policies or pension nominations need updating

●      Whether your will works alongside your financial settlement

A will written before separation may no longer reflect your priorities. Reviewing it during divorce allows you to take proactive steps and make sure your estate plan reflects your current intentions.

Should you make a new will during divorce?

You do not need to wait until your divorce is complete before making a new will. In fact, it can be sensible to review your will as soon as you separate or start divorce proceedings.

Until the final order is granted, your spouse may still benefit under your current will. A new will can help you set out who you want to inherit, who should manage your estate, and how you want to provide for any children or dependents.

However, your will should not be considered in isolation. It may need to work alongside your financial settlement, property arrangements and any ongoing financial responsibilities . Taking professional advice gives you peace of mind that your will reflects your current wishes, and doesn't create avoidable problems elsewhere.

How do financial settlements and your will overlap?

Divorce does not automatically end all financial ties between spouses. Financial claims are dealt with separately, usually through a financial settlement or financial order .

This is necessary where one person is paying spousal maintenance, where financial matters have not yet been resolved or where one person remains financially dependent on the other. In some circumstances, financial ties can continue after the marriage ends.

A clean break financial order can be used in some cases to dismiss future financial claims between former spouses. Whether this is appropriate will depend on your circumstances. If financial matters are not resolved properly, this can create problems later. For example, an ex-spouse who was still financially dependent may try to make a claim against the estate after death, or there may be disputes about whether assets should pass to a new partner, children or other intended beneficiaries. A clear financial order and an up-to-date will can minimise the risk of these disputes occurring.

What happens to the family home and jointly owned property?

The family home may be dealt with as part of the financial settlement, but the way the property is legally owned can also affect what happens if one person dies.

If a property is owned as joint tenants, the surviving owner will usually inherit the property automatically by right of survivorship. This takes effect outside the terms of the will, meaning the will cannot usually be used to pass that person’s share to someone else.

This can lead to unintended outcomes if you are separated but still own the property together. You may assume that your share would pass under your will, when in fact the form of ownership means it passes automatically to the other owner.

If you own property with your spouse or civil partner, you should take advice on how the property is held and whether that still reflects your current intentions.

How Switalskis can help

Divorce can affect your will, your financial arrangements and your future plans in ways that are not always obvious at the start. While divorce does not usually revoke a will, it can change how parts of the will take effect and leave gaps that no longer reflect your wishes.

At Switalskis, our divorce solicitors can help you understand how separation and divorce may affect your financial position, including your financial settlement, property arrangements and ongoing responsibilities. Our award winning wills team can review your will and make sure your plans reflect your current circumstances.

If you’re separating, going through divorce proceedings or concerned about what could happen under your existing will, contact Switalskis today. Call 0800 138 0458 or get in touch via the form on our website.