When going through a divorce, updating your Will is often overlooked. However, a Final Order of Divorce (formerly known as a Decree Absolute) can have a significant impact on how your Will operates. Understanding this effect is essential to ensure your estate is dealt with in line with your wishes and to avoid unintended consequences for your loved ones.

Does Divorce Cancel a Will?

A common misconception is that divorce automatically cancels an existing Will, this is not the case. Under UK law, your Will itself remains valid after divorce. However, once the Final Order is granted, the law treats your former spouse as if they had died on that date, unless your Will specifically states otherwise.

While this provision prevents an ex-spouse from benefiting unintentionally, it can also create gaps or outcomes in your Will that you did not intend.

What Happens to Gifts Left to an Ex-Spouse?

Any gifts left to a former spouse in your Will no longer take effect once the Final Order has been made. What happens instead depends on how your Will is drafted:

• If you named an alternative beneficiary, the gift may pass to them.
• If the gift forms part of the residue of your estate, it may be shared among your other residuary beneficiaries.
• If no alternative arrangements are included, that part of your estate could pass under the rules of intestacy.

This can result in assets going to people you did not intend or in a way that no longer reflects your circumstances.

Executors, Trustees and Guardians

Many people appoint their spouse as an executor, trustee or guardian for their children. Following a Final Order of Divorce, these appointments are automatically revoked unless the Will clearly states that they should continue despite the divorce.

This can cause practical difficulties, such as delays in administering the estate or uncertainty about who should care for minor children. These issues can be avoided by reviewing and updating your Will at the appropriate time.

Why Timing Matters

If one party dies before the Final Order of Divorce is granted, the marriage is still legally valid. In those circumstances:

• Divorce proceedings come to an end.
• The surviving spouse may still benefit under the Will.
• They may also have rights under intestacy and the Inheritance (Provision for Family and Dependants) Act 1975.

For this reason, it is advisable to review your Will as soon as divorce proceedings begin, rather than waiting until they are finalised.

The Importance of Making a New Will

Although the law provides some protection following divorce, it is not a substitute for a carefully drafted and up-to-date Will. Making a new Will after divorce allows you to:

• Clearly reflect your current wishes
• Appoint appropriate executors and guardians
• Avoid partial intestacy
• Reduce the risk of future disputes

What You Should Do?

• Update your Will: create a new Will or amend your existing one immediately after separation to reflect your new intentions, appoint new executors and beneficiaries if necessary.
• Secure a ‘Clean Break’: ensure your Financial Order includes a clause dismissing future claims under the Inheritance (Provision for Family and Dependants) Act 1975, preventing your ex-spouse from claiming against your estate later.
• Consider Trusts: consider trusts within your Will to protect your children’s inheritance whilst also providing for your new partner if you remarry.

Jointly Owned Assets

Jointly owned assets including the former family home would not fall under the Will and would therefore pass automatically to the remaining living owner(s). In this case, your ex-spouse. With advice and taking the necessary steps you can ensure your share of any joint assets is protected.

In Summary

A Final Order of Divorce can have a significant effect on how your Will takes effect, often in ways that are not immediately obvious during the divorce process itself. Reviewing and updating your Will further to your separation helps ensure that your arrangements for finances, children and future security remain consistent and clearly reflect your intentions.

Here at Switalskis, our family team is here to help you ensure you are protected from any future claims in your Financial Order following your Final Order of Divorce. Our Wills and Probate team are also here to help you check and amend your Will following your separation.

Contact us today to arrange a free half hour advice appointment with our family team and find out how we can assist you or arrange speak to our Wills and Probate team for assistance with your Will.