How Do Marriage and Divorce Affect a Will?
Marriage and divorce both have a significant impact on your Will. If you marry, then your current Will could be revoked, meaning you’ll need to make a new one. If you divorce, then any gifts made to your ex-spouse will fail. Unless you make a new Will, this portion of your estate will be dealt with according to the intestacy laws, or according to your potentially outdated wishes.
Does marriage cancel a Will?
Yes, marriage automatically cancels a Will – unless it contains a clause stipulating that it has been made ‘in contemplation of marriage’.
So, let’s imagine that you made a Will a couple of years ago. Since then, you have fallen in love and got married. As soon as you signed the marriage register, your current Will was automatically revoked. This means that you don’t currently have a valid Will in place, and should you die, your estate must be dealt with according to the laws of intestacy.
The exception to this rule is where a Will is made in contemplation of a marriage. This is when you make a Will shortly before your wedding date. In the Will, you include a clause that stipulates that your Will should not be revoked following the forthcoming marriage to your named spouse.
Otherwise, marriage cancels a Will. Because of this, it is absolutely vital that you make a new Will shortly after you say ‘I do’. If you don’t, you will die intestate, meaning without a valid Will in place. The law then decides who gets what. This might not correspond to your wishes, potentially leaving certain loved ones without the provision you had intended.
Is a Will still valid after divorce?
Yes, a Will is still valid after divorce – but your ex-spouse will be treated as though he or she has died. This means any gifts made to your ex-spouse will fail. Also, if you’ve named your ex-spouse as an Executor, then this appointment will fail.
Unlike marriage, divorce doesn’t revoke a Will. Your current Will remains valid, even once you get your decree absolute. But what divorce does do is invalidate any gifts that were made to your ex-husband or wife. For inheritance purposes, he or she is treated as though they had already died.
You might not be too concerned about this – you might not want your ex-spouse to inherit from your estate anyway. But actually, it can be very problematic. Why? Because it could result in the wrong people benefiting from your estate. Either, the gift will be inherited by the next beneficiary in line, as per the terms of your Will. Or, if the Will is silent on the matter, then that portion of your estate must be dealt with according to the intestacy laws.
For example, imagine that you write a Will leaving everything to your wife. You state that if she dies before you, everything should go to her children instead. If you later divorce, then your ex-wife won’t get anything from your estate – but her children will inherit everything. On the other hand, if you didn’t name substitute beneficiaries, then your entire estate must be dealt with according to the intestacy laws. This could mean that some loved ones – such as unmarried partners – receive nothing.
Therefore, you must update your Will following your divorce to ensure it reflects your current wishes.
Updating a Will after separation
It’s also important to note that your Will remains valid, should you separate from your husband or wife, but you are not yet divorced. This means that if you die before the divorce proceedings are complete, the terms of your Will must be enforced. This could lead to your estranged spouse receiving a share of (or all of) your estate.
If you want to exclude your legal spouse from your Will, you need to update your Will as soon as possible. We recommend that you ask a solicitor for help. The wording is essential in these situations, as your spouse could make a claim against your estate under the Inheritance Act.
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If you would like to write a Will, or you want to amend your existing one, please call us on 0191 567 7244 and we’ll be happy to help you. If you would rather contact us online, email us at email@example.com and one of our team will be in contact with you shortly.