Divorce has complicated effects on personal finances, both in terms of dividing marital assets between both spouses, and making a clean break so that you are solely liable for your own financial circumstances going forward.
Some aspects are more tangled than others. If you have children, you may agree to make long-term maintenance payments. If you have a private pension pot, your spouse may be entitled to a share upon divorce.
But one area that is often overlooked is the effect of divorce on will bequests, both to the ex-spouse and to other beneficiaries. In this guide, we will answer the most important questions in this topic, including the headline question: “Does divorce revoke a will in the UK?”
The short answer is that divorce revokes the parts of your will that apply to your ex-spouse, while leaving any remaining bequests unaltered. The law actually considers your spouse to be deceased once you divorce them, for the purposes of executing your will.
However, there are some more complex issues to resolve, which we’ll look at in detail below. There are also certain circumstances which might allow your ex-partner to claim against your estate, even if they are not named in your will.
It’s a good idea to get professional guidance on this topic as part of your separation. Marcia Mediation’s experienced financial mediators can help you to understand how your will may be affected by your divorce or civil partnership dissolution.
An even more pressing question than “Does divorce invalidate a will?” is whether or not your initial separation has any effect – and the simple answer to this is no, it does not.
If you have a valid will during your marriage, and you separate from your spouse without legally ending the marriage (i.e. you don’t get a divorce), then that existing will remains in force even if you live apart from your spouse for a considerable length of time.
Historically, if you lived separately for a minimum of five years, you could apply for a divorce without needing your spouse’s consent. Since the introduction of no-fault divorce rules in 2022, this is no longer the case, and you can now petition for divorce at any time after 12 months of marriage.
But until your divorce is finalised, any will that names your spouse as your beneficiary remains in force. If you were to die during the divorce process, your spouse may still inherit anything you had previously intended to leave to them – no matter how long you have lived apart.
This also remains the case if you start a new relationship and even if you have children with a new partner, but stay legally married to your ex. That’s why it’s important to separate your legal affairs via divorce – such as your will – along with your financial affairs via a clean break order.
An interesting counterpoint to the question “Does divorce revoke a will?” is the less intuitive question: “Does marriage revoke a will?”
Under the current version of the Wills Act 1837, a will is normally revoked if the ‘testator’ – the person whose will it is – enters into a new marriage or civil partnership.
There are some exceptions. For instance, if you are already planning to get married when you write your will, you can include bequests to your future spouse. The legislation says that you must have “a particular person” in mind.
Because of this, if you write a will before you know who you are going to marry, or before you know that you are going to marry them, then legally it no longer applies once you get married.
As is often the case in UK law, this is an area with a lot of caveats and loopholes, and regional differences apply in Scotland and Northern Ireland. In most cases, it is sensible to act on the assumption that your will no longer applies once you are married (or remarried, if you have previously been divorced).
That means that in practice, the effect of marriage is even greater than the effect of divorce on will dispositions: marriage invalidates the will as a whole, whereas divorce specifically invalidates any bequests to your spouse.
Again, financial mediation from Marcia Mediation can be beneficial. We’re not just here for divorce – we also help clients negotiate prenuptial agreements and make other such financial arrangements before getting married.
Strictly speaking, the answer to the question “Does divorce invalidate a will?” is “No.” However, divorce DOES invalidate the parts of your will that involve your ex-spouse.
Because of that, it’s almost always a good idea to make a new will that completely replaces your partially invalid will. It’s possible to amend an existing will – this is called a ‘codicil’ – but it’s quite complicated to do this, so many people prefer to create a new will from scratch.
There are other good reasons to write a completely new will after divorce. It’s likely that your financial circumstances will have changed significantly. You may no longer own (or co-own) marital assets that are mentioned in your will.
Starting afresh gives you the opportunity to sit down and list everything that still belongs to you after your divorce, and bequeath the appropriate items and sums of money to the people who you would like to inherit from you.
Some people feel it is not necessary to update their will after divorce, because they are still happy for their ex-spouse to inherit the bulk of their estate. However, this is a misunderstanding of the profound effect of divorce on will bequests and spousal entitlements.
Once you are divorced, any bequests to your former spouse are invalidated. Not only that, but for the purposes of interpreting your existing will, your ex-partner is considered to be deceased.
This can leave your estate open to intestacy proceedings and claims from unintended beneficiaries. Disputes can even arise among your intended beneficiaries, leading to fallings-out among siblings during the incredibly stressful time of a recent bereavement.
A new will resolves a lot of these potential tension points. You can include your ex-spouse in your will if you want, or you can leave them out completely. You can also make suitable arrangements for any young children from your marriage.
There are circumstances under which your ex-spouse may claim against your estate, for example if you have NOT left adequate provision for your children. A professionally written will should try to anticipate any such claims, and may even leave some flexibility for the executor to resolve claims proactively and amicably.
It’s important to remember that no matter what, divorce DOES affect any parts of your will that include your spouse. Because of that, it’s highly advisable that you should write a new will or amend your existing will if you want to ensure that things are taken care of.
Financial mediation is a perfect fit for this process. Knowing that this is something you will need to deal with, it makes good sense to hold constructive conversations with your spouse, so that you can both make sure that your new arrangements protect your children and account for any other shared responsibilities.
You can also use the mediation process to understand the circumstances under which you might have a claim to your ex-spouse’s estate, even if you are not mentioned in their new will – and equally, the circumstances under which they might have a claim to yours.
Mediation is designed to be a collaborative process. It works well when you are on good terms with your ex-partner, as it does not introduce any unnecessary conflict. But it also works well when you are not on friendly terms, as the mediator can bridge that gap very effectively.
Our team of expert family and finance mediators can help you at every stage of your relationship, from prenuptial agreements, to arranging new wills upon marriage, through to writing a replacement will after divorce.
We can offer guidance on issues like exactly when to get a new will after divorce, what rights your ex-partner may still have to claim against your estate, and how to incorporate flexibility for such claims into your will.
Divorce doesn’t have to be confrontational. At its best, divorce is about separating your financial and legal arrangements so that you can make a clean break before moving on. Your will is one of the most important aspects of preparing for the rest of your life, and beyond.
To discuss any of the issues raised in this guide, or to schedule an appointment to discuss your divorce and its implications for your will, contact Marcia Mediation’s financial mediators today.
If you have any questions, call us on 0330 236 7450 or fill out this form
