Divorce can affect many areas of your life, and updating your will is often overlooked.
If you are separating or going through divorce proceedings, it is important to understand what happens to your will both before and after the divorce is finalised. Your will is not automatically cancelled by divorce, and if it is not reviewed, your estate may not pass in the way you intended.
What happens to my will during divorce?
While divorce proceedings are ongoing, your existing will remains valid. This means your spouse may still inherit under the terms of your will unless you make changes.
That is why it is sensible to review your will as early as possible if you are separating.
What happens after the divorce is finalised?
Once the divorce has been finalised and the Decree Absolute has been granted, your will is not automatically revoked.
Instead, your former spouse or civil partner is generally treated as though they had died before you. This means that provisions in your will relating to them will usually fail.
What does this mean in practice?
After the Decree Absolute:
- any gift to your former spouse or civil partner will usually fail
- any appointment of your former spouse or civil partner as executor, trustee or guardian will usually fail
- the rest of your will may still remain valid, provided you have named substitute executors and alternative beneficiaries
If your former spouse is the only executor and the only beneficiary named in your will, your estate may instead pass under the intestacy rules.
The intestacy rules set out a fixed order of inheritance, and the people who inherit may not be the people you would have chosen.
What about children?
If your will appoints your former spouse as guardian of your minor children, that appointment may no longer take effect after divorce.
However, your former spouse may still have parental responsibility for your children. Any appointment of an alternative guardian in your will would usually only take effect if no one with parental responsibility survives, or if the court has removed that parental responsibility.
Why is reviewing your will so important?
A divorce can have a significant impact on how your estate is dealt with after your death.
Reviewing your will helps ensure that:
- your chosen beneficiaries are still the right people
- your executors are appropriate
- there are replacement executors and beneficiaries where needed
- your wishes for your children are properly considered
It is also an opportunity to check whether your will still works alongside your wider financial and family circumstances.
What about inheritance tax?
Reviewing your will after divorce is also a sensible time to consider inheritance tax planning.
The records available refer to the spouse exemption from inheritance tax where assets pass to a spouse or civil partner, and also note the importance of estate planning to help mitigate inheritance tax where appropriate
Once a divorce has been finalised, it is sensible to review whether inheritance tax may arise on your estate and whether any planning is needed
The key point
Divorce does not automatically cancel your will.
If you are separating or divorcing, it is important to review your will so that it continues to reflect your wishes and works as intended.
Get in touch
Kendal Office
01539 720049
Exchange Chambers, 8 & 10 Highgate, Kendal, Cumbria, LA9 4SX
Email:
kendal@arnldgreenwood.co.uk
Grange Office
Arnold Greenwood, 5 Lowther Gardens, Grange -Over-Sands, LA11 7EX
015395 38077
Email:
grange@arnoldgreenwood.co.uk
