Does Divorce Revoke A Will?

Edited by Lois Rogers - Partner

Lois is a leading family lawyer advising on all issues arising upon relationship breakdown, including divorce and dissolution, financial remedies, nuptial agreements, injunctive proceedings and children matters, but with a particular focus on complex financial cases, often involving international assets across multiple jurisdictions.

Divorce is a life-changing event that affects many aspects of your life, including your financial arrangements and your future plans. One area often overlooked is the impact divorce can have on your current will. At Ribet Myles, we’re here to help you navigate these changes, ensuring your estate planning aligns with your new circumstances and protects your loved ones.

How Does Divorce Affect My Existing Will if I don’t update or change it?

In England and Wales, divorce doesn’t automatically revoke your will, but it does have a significant impact on how it is interpreted. The issuance of the final order (formerly known as the decree absolute), which is the legal step that terminates a marriage, affects provisions in wills, making it essential to reconsider or update your will to prevent unintended inheritance to an ex-spouse. Under the law, once your divorce is finalised:

Your ex-spouse is treated as if they have died: Any provisions in your will that leave assets to your former spouse or appoint them as an executor become void. For example, if you left your home to your ex-spouse, it would no longer pass to them unless explicitly stated in a new will.

Dangers of Intestacy: If you haven’t stated in your will what should happen to your assets in the event of your ex partner’s death the rules of intestacy could apply, which come into effect when someone does not have a valid will, or when the original beneficiary of a will dies and the will does not include details of what happens next. It could then mean your estate would be distributed according to legal rules, rather than your wishes.

Other provisions remain valid: The rest of your will remains intact, which can sometimes lead to unintended consequences. For instance, assets intended for your ex-spouse may be redirected to residual beneficiaries, which may not align with your current wishes.

It’s therefore crucial to review and update your will after a divorce to ensure it reflects your wishes and new circumstances.

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Kevin Tewis - Client testimonial

Does a Will From Before I was Married Come Back into Effect After a Divorce?

No. A will made before your marriage does not automatically come back into effect after a divorce. When you marry, any existing will is typically revoked unless it explicitly states that it was made in contemplation of marriage.

After your divorce, the provisions in a new or post-marriage will related to your ex-spouse are treated as if they no longer apply (e.g., any gifts to them or their role as executor becomes void). However, if no updated will is made post-divorce, the rest of your will remains valid, which can lead to unintended outcomes. It’s essential to create a new will to reflect your current wishes and avoid potential legal complications.

Should I Make A New Will After A Divorce?

Yes, making a new will after a divorce is essential to reflect your current wishes and circumstances. You remain legally married during divorce proceedings until the final order is issued meaning your current spouse could inherit your assets unless you create a new will. Divorce significantly impacts your existing will—provisions related to your ex-spouse, such as inheritance or executor roles, are voided, but the rest of your will remains valid.

Without updating your will, unintended beneficiaries may inherit, and your intentions may not be clear, potentially causing disputes among your loved ones. A new will allows you to name updated beneficiaries, appoint new executors, and account for any changes in your life, such as new relationships, children, or financial arrangements. Taking this step safeguards your assets and ensures your estate is managed according to your wishes.

Why Update Your Will After Divorce?

Failing to update your will post-divorce can result in unintended outcomes, such as:

Relationship breakdowns, such as divorce, necessitate reassessing one's estate plans to ensure that the distribution of assets aligns with current intentions.

Unintended Beneficiaries: If your ex-spouse was a primary beneficiary, your assets might go to a residual beneficiary you no longer wish to inherit.
Unclear Intentions: An outdated will can lead to disputes among family members, causing stress and potentially lengthy legal battles.
Omitted Loved Ones: If your circumstances have changed, such as having new children or a new partner, they may not be adequately provided for in your existing will.

Updating your will ensures that your assets are distributed according to your current wishes and circumstances.

When Should I Review and Update My Will?

It is essential to review and update your will whenever your personal circumstances change, especially after a divorce or dissolution of a civil partnership. This ensures that your estate is divided according to your wishes and prevents potential claims being brought against your estate under the Inheritance Act.

Some key life events that may trigger the need to review and update your will include:

Divorce or dissolution of a civil partnership: The end of a relationship significantly impacts your existing will, making it crucial to update your estate plans.
Remarriage or entering into a new civil partnership: New relationships can alter your priorities and beneficiaries.
Having children or grandchildren: Expanding your family means you may want to provide for new dependents.
Changes in your financial situation: Significant changes in wealth or assets should be reflected in your will.
Changes in your relationships with family members or friends: Shifts in personal dynamics may influence your decisions on inheritance.
Moving to a new country or state: Different jurisdictions have varying laws that can affect your will.

When reviewing and updating your will, consider the following:

Beneficiaries: Who do you want to inherit your assets?
Executors: Who do you want to appoint as the executor of your estate?
Guardianship: Who do you want to appoint as the guardian of your minor children?
Trustees: Who do you want to appoint as the trustee of inherited assets?
Specific Gifts or Bequests: Are there any specific gifts or bequests you want to make?
Funeral Arrangements: Are there any specific funeral arrangements you want to make?

It is recommended to consult with a solicitor to ensure that your will is updated correctly and reflects your current wishes.

Can My Ex Claim My Estate When I Die?

After a divorce, your ex-spouse typically cannot claim your estate if you have updated your will and financial arrangements to reflect your new circumstances. Once a divorce is finalised, an ex-spouse is treated as if they have died, which impacts any bequests to them in a will and their status as a surviving spouse regarding gifts and executor appointments.

However, if you pass away without a valid will, the rules of intestacy come into play, which do not include ex-spouses as beneficiaries. Despite this, there are exceptions—your ex could potentially make a claim against your estate under the Inheritance Act 1975 if they can demonstrate financial dependence on you at the time of your death.

To prevent such claims and ensure your estate is distributed according to your wishes, it’s crucial to update your will post-divorce. A well-structured will, coupled with thorough estate planning, offers clarity and minimises the risk of disputes. Seeking professional legal advice is the best way to protect your assets and ensure your intentions are legally upheld.

Would A Clean Break Order Stop My Ex Claiming My Estate?

Yes, a Clean Break Order can provide critical protection after a divorce by legally severing financial ties between you and your ex-spouse. Without this court-approved agreement, your ex may retain the right to make financial claims against your estate, even years after the divorce. This includes potential claims on future income, assets, or inheritance.

A Clean Break Order ensures that neither party can pursue further financial claims against the other, providing peace of mind that your financial arrangements are final. It is particularly important if you anticipate acquiring significant assets in the future, such as property, pensions, or investments.

By formalising the financial settlement with a Clean Break Order, you can protect your estate and ensure that your financial legacy is secure for your intended beneficiaries. Working with an experienced family lawyer is essential to create a robust and enforceable Clean Break Order tailored to your circumstances.

“Ribet Myles have provided an exceptional service in helping me to reach my divorce settlement. From the top to the bottom, they have been a friendly but extremely professional company and have given me much needed guidance and reassurance throughout this stressful process.”

Dermot Jones - Client testimonial

How Can I Protect My Children’s Inheritance if I am in a New Relationship?

Protecting your children’s inheritance when you enter a new relationship is crucial to ensure your assets are passed on according to your wishes. Here are key steps you can take:

Specify how your estate will be distributed, ensuring your children are clearly named as beneficiaries. Include details about specific assets or percentages to avoid disputes.
This allows your new partner to benefit from certain assets, such as living in your home, while preserving the asset’s value for your children after your partner's passing.
A discretionary trust gives trustees the flexibility to allocate funds to your children as needed, protecting the inheritance from unforeseen circumstances like divorce or bankruptcy.
If you’re entering into a marriage or civil partnership, a nuptial agreement can protect specific assets for your children by outlining how finances will be handled in the event of a separation or your death.
If you purchase property with your new partner, consider holding it as tenants in common rather than joint tenants. This allows you to leave your share of the property to your children in your will.
Changes in your relationship, financial status, or the law may affect your arrangements. Regular reviews with a legal professional ensure your plans stay aligned with your intentions.

By taking these steps and working with an experienced estate planning lawyer, you can create a secure plan that balances the needs of your new relationship while safeguarding your children’s inheritance.

If I'm Paying Spousal Maintenance Can My Ex Claim Against My New Will?

If you are paying spousal maintenance to your ex-spouse, you are not automatically required to provide for them in your new will. However, their ability to claim against your estate depends on the circumstances surrounding your financial arrangements and the terms of any Final Order dealing with the finances..

If you are paying ongoing spousal maintenance (i.e. with a Clean Break Order), your ex-spouse could potentially make a claim against your estate under the Inheritance Act, arguing that they were financially dependent on you at the time of your death. This is particularly relevant if spousal maintenance was a significant part of their income.

To protect your estate and ensure it is distributed according to your wishes:

If possible, negotiate a clean break agreement to sever financial ties and eliminate future claims, including those against your estate.
Explicitly state how you want your estate to be distributed. While this does not prevent claims, it provides a clear record of your intentions.
Some individuals use life insurance policies to cover maintenance obligations in the event of their death, reducing the likelihood of claims on the estate.
Consult with an experienced family lawyer to understand your obligations and options for protecting your estate from potential claims by your ex-spouse.

Taking these steps ensures your estate plan aligns with your wishes while addressing any potential legal risks associated with spousal maintenance.

“I am so pleased I was introduced to Alistair Myles at Ribet Myles. The team have been amazing, with all the emotional upset of going through my divorce, Alistair and his team have always acted in a professional manner with the added bonus of being completely on top of everything with care and compassion. Very knowledgeable and always knowing the best way to move forward bringing my divorce to an end."

Christina Baccarini – Client Testimonial

I am Married but Separated - Can I Prevent My Spouse Claiming My Estate?

If you are married but separated, your spouse retains legal rights to claim against your estate unless steps are taken to protect your assets. Separation alone does not alter your legal status as a married couple, and under the laws of intestacy, your spouse would still inherit the majority—or even all—of your estate if you die without a valid will. To limit or prevent their claim as far as possible, consider the following steps:

1. Create or Update Your Will

If you do not already have a will, create one to specify who should inherit your assets. While a will does not completely prevent claims, it ensures your intentions are clear.

If you have a will, update it to remove your spouse as a beneficiary and appoint new executors who align with your wishes.
Ribet Myles can also advise you about severing any joint tenancy, so that the asset (for example, the main home) does not automatically go to your former spouse.

2. Obtain a Legal Separation Agreement

A formal separation agreement can outline financial and property arrangements, providing a framework that may discourage or limit claims from your spouse. However, if you have separated for good, it may be better to proceed with a divorce to minimise the prospect of unwanted claims from your ex-partner upon your death.

3. Seek Legal Advice

Consult an experienced family lawyer to explore your options and implement strategies to protect your estate. They can also help you understand the Inheritance Act, under which your spouse might make a claim, and how to mitigate the risk.

Taking proactive steps while separated ensures that your estate aligns with your wishes and reduces the likelihood of your spouse inheriting more than you intend.

What Happens If You Don’t Have a Will?

If you die without a valid will, the rules of intestacy will apply, which may not reflect your intentions. For example, if you are divorced and have children, your assets will be distributed to your children under these rules. However, without a clear will, disputes can arise, particularly if there are blended families or complex financial arrangements.

Creating a new will after divorce ensures your wishes are clear and legally binding, reducing the risk of disputes.

Key Considerations When Updating Your Will

When revising your will after a divorce, it’s important to think about:

Guardianship of Children: If you have young children, ensure your will appoints a guardian who reflects your current wishes.
Beneficiaries: Update your beneficiaries to ensure your assets go to the people or causes you care about most.
Executors: If your ex-spouse was previously named as an executor, choose someone else you trust to handle your estate.
New Relationships: If you’ve remarried or entered a new relationship, you may want to update your will to reflect these changes.

How Does Divorce Affect Foreign Wills?

If you have a foreign will that deals with assets in another country, it is essential to check with a lawyer in that country to determine the effect of a divorce on the foreign will. Laws regarding foreign wills can vary significantly from country to country, and it is crucial to understand how your divorce may impact your foreign assets.

Some key considerations when dealing with foreign wills and divorce include:

Governing Laws: Which country’s laws will govern the distribution of your foreign assets?
Validity of Foreign Will: Will your divorce revoke your foreign will, or will it remain valid?
Updating Procedures: Are there any specific requirements or procedures that need to be followed to update your foreign will after a divorce?
Tax Implications: How will your foreign assets be taxed in the event of your death?

It is recommended to consult with a lawyer who is familiar with the laws of the country where your foreign assets are located to ensure that your foreign will is updated correctly and reflects your current wishes.

Planning For Your Financial Future - How Ribet Myles Can Help

At Ribet Myles, we can provide expert advice on updating your will following a divorce. We have a network of trusted private client solicitors with whom we work to guide you through the process, ensuring that your will is clear, legally sound, and aligned with your current circumstances.

We can also help you address other important aspects of your financial and family planning post-divorce, including trusts, property ownership, and inheritance tax planning, ensuring your loved ones are well-protected.

Your Will After A Separation Or A Divorce -
Take Control of Your Future Today

If you’re separating or going through a divorce, considering updating your will is an essential step in securing your future and protecting those you care about. Contact Ribet Myles today on 020 7242 6000 to arrange a consultation with our expert legal team.

Does Divorce Revoke A Will?