Does Divorce Revoke A Will?

Jenny Walsh

How divorce affects wills in England and Wales

Divorce can have a significant impact on an existing will. Many people assume that getting divorced automatically cancels their will, but this is not entirely correct.

Under the law in England and Wales, divorce does not revoke the entire will. Instead, the law treats your former spouse or civil partner as if they had died when the will takes effect. This means that any gifts left to them or roles they were given in the will may no longer apply.

Because of this, it is usually advisable to review and update your will after a divorce to ensure your estate is distributed according to your current wishes.

Does divorce invalidate a will?

Divorce does not usually invalidate a will completely. The will itself may remain valid, but certain provisions involving your former spouse will generally no longer take effect.

For example:

• Any gift left to your former spouse will normally fail
• Your former spouse will usually no longer be able to act as executor or trustee
• The rest of the will may continue to apply

This can sometimes create unintended consequences. If the will does not clearly state what should happen if a gift fails, parts of the estate may instead be distributed according to the rules of intestacy.

What happens to a will after divorce?

When a divorce is finalised, the law treats the former spouse as if they had died for the purposes of the will. This affects both gifts and appointments made to that person.

This means:

• Gifts left to a former spouse are usually treated as if the person had died before the will-maker
• Appointments of the former spouse as executor or trustee will normally no longer take effect
• Other provisions of the will remain valid unless they depend on the former spouse

Although the will may technically still operate, it may no longer reflect the testator’s intentions.

Is a will still valid after divorce?

Yes, a will can still be legally valid after divorce. However, the way it operates may change significantly if the former spouse was included in the will.

For example, if your former spouse was named as the main beneficiary or executor, those provisions will generally fail. The estate may then pass to alternative beneficiaries named in the will.

If no alternative beneficiaries are listed, the estate may instead be distributed under the rules of intestacy.

Why you should update your will after divorce

Although divorce may remove your former spouse from certain provisions of your will, it does not automatically update the rest of the document.

For this reason, it is strongly recommended that you review your will after a divorce. Making a new will ensures that your estate is distributed in line with your current circumstances and intentions.

Updating your will allows you to:

• Appoint new executors
• Decide who should inherit your estate
• Provide for children or other family members
• Avoid confusion or disputes after your death

Making a new will after divorce

Creating a new will following a divorce is often the simplest way to ensure that your estate planning reflects your current wishes.

A new will can clarify who should inherit your assets and who should be responsible for administering your estate. It can also help prevent misunderstandings or disputes between family members.

If your circumstances have changed significantly following divorce, taking professional advice can help ensure your will is properly drafted and legally valid.

When disputes arise after divorce

Disputes can sometimes arise where a will was not updated after divorce. Family members may disagree about how the estate should be interpreted or whether the will still reflects the testator’s intentions.

In some cases, claims may also be brought under inheritance legislation or through challenges to the validity of the will.

If you are involved in a dispute about a will, it may be helpful to seek advice from solicitors experienced in contesting a will and probate litigation.

Speak to a wills and probate solicitor

If you are unsure how divorce affects your will, it is important to seek legal advice. Reviewing your estate planning arrangements after a major life event such as divorce can help ensure your wishes are properly recorded.

The team at Osbornes Law can advise you on updating your will, resolving inheritance disputes and protecting your estate planning arrangements.

Learn more about our wills, probate and disputed estates services, or contact our team for tailored advice.

Does divorce mean my will is automatically revoked?

No, divorce does not automatically revoke a will. A will remains in effect until it is properly revoked or until the person who made the will (the “testator”) dies.

In most states, a will can be revoked by the testator at any time, as long as the testator has the mental capacity to understand the nature of the document and the act of revocation. There are several ways to revoke a will, including destroying the original document, executing a new will that revokes all prior wills, or making a written document that specifically revokes the will.

If you are going through a divorce and have concerns about your will, it is a good idea to consult with a divorce lawyer to understand your options and to ensure that your estate plan reflects your current wishes.

Why should I make a new will after getting divorced?

There are several reasons why you may want to consider making a new will after a divorce:

1. To reflect your current wishes: If you have a will that was made before your divorce, it may contain provisions that are no longer relevant or that you no longer want to take effect. For example, you may have left gifts to your former spouse or appointed them as a personal representative. Making a new will allows you to update your estate plan to reflect your current wishes.
2. To provide for your children: If you have children from your marriage, your will may contain provisions related to their care and support. If your divorce changes your relationship with your children, you may want to update your will to reflect your new circumstances.
3. To name new beneficiaries: After a divorce, you may have new people in your life whom you wish to include in your estate plan. A new will allows you to name these individuals as beneficiaries or appoint them as personal representatives.
4. To make changes to your estate plan: A divorce can also be a good time to review your overall estate plan and make any necessary changes. This could include updating your financial and medical powers of attorney or revoking or creating trusts.

It is important to keep in mind that making a new will does not automatically revoke your prior will. If you want to revoke your prior will, you will need to follow the legal requirements for revocation, which may include executing a written document that specifically revokes the will. It is a good idea to consult with an attorney to ensure that your estate plan is properly updated after a divorce.

What happens if I don’t make a new will after getting divorced?

If you don’t make a new will after getting divorced, your previous will remains in effect until it is properly revoked or until you die. This means that the provisions of your previous will, including any gifts or appointments of personal representatives, will still take effect.

If you have a will that was made before your divorce, it may contain provisions that are no longer relevant or that you no longer want to take effect. For example, you may have left gifts to your former spouse or appointed them as a personal representative. If you don’t make a new will, these provisions will still take effect, even if you don’t want them to.

Can my ex claim my inheritance after getting divorced?

In the United Kingdom, inheritance is generally considered separate property and is not subject to division in a divorce. This means that your ex-spouse would not be entitled to any part of your inheritance, regardless of whether you received it before or after the divorce.

However, it is important to note that the distribution of your estate upon your death is governed by the terms of your will or, if you do not have a will, by the laws of intestacy. If you have not made a will, your ex-spouse may be entitled to a share of your estate under the laws of intestacy, depending on your circumstances and the laws of the state where you live.

It is also worth noting that the terms of your divorce settlement may affect your ex-spouse’s ability to claim your inheritance. If you and your ex-spouse reached an agreement on the division of property, including inheritance, as part of your divorce, that agreement may determine whether and to what extent your ex-spouse is entitled to a share of your inheritance.

How we can help

Are you going through a divorce? Until your divorce is finalised, your ex could still inherit under your current will or intestacy rules. Even after divorce, failing to update your will could put your children’s inheritance at risk.

Osbornes Law can help you create a new will to ensure your wishes are respected.

To speak with one of our divorce solicitors or will solicitors, contact us by:

• Filling in our online enquiry form; or
• Calling us on 020 7485 8811