Many people think that when you divorce any will that existed is no longer valid – that the will is revoked by the divorce. This isn’t the case. Certainly if you remarry or enter a civil partnership following your divorce your will does become redundant. But a divorce – while it has a certain impact upon the terms of an existing will – does not have the effect of revocation.  Below we examine some of the common issues that arise around divorce and wills.

How Does Divorce Affect My Will?

If you have made a will and later divorce or dissolve your civil partnership your will is still valid. However: under The Wills Act

  • If you appointed your ex as a trustee or executor in the will or
  • You left any money or property to your ex in the will

then these clauses in your will take effect as if your ex died on the date of your divorce. In practice this means that any substitutional provisions (back up executors or alternative beneficiaries) will come into play.

However, subject to a number of restrictions, including rules about leaving assets to minors and the provisions of the Inheritance (Provision for Family and Dependants) Act, 1975 (‘the I(PFD)A’) you are generally free to leave your estate in whichever way you like. You have what’s known as ‘testamentary freedom’. So you can override the Wills Act rules above by expressly stating in your will that a gift to a spouse is to be respected even if you get divorced in the future.

Is My Will Still Valid After I Separate?

The rules in the Wills Act that we’ve mentioned only apply when a decree absolute has been issued. Separation or the pronouncement of a decree nisi won’t have any effect on the terms of your will. It’s advisable therefore, if you are separated and thinking about divorce, to consider making a new will.

What Happens To My Estate If I Am Divorced But Don’t Have A Will?

Anyone who dies without a valid will is said to have died ‘intestate’. After debts and funeral expenses are paid the remaining estate is distributed according to the rules of intestacy. The first to benefit under these rules is the surviving spouse. However if you are divorced your ex is removed from the list of intestate beneficiaries. Instead your estate will be divided among your children, parents, siblings and other relatives in a clearly defined order.

Can My Ex Challenge My Will?

Challenges to wills are on the rise. This is partly due to house price growth, which can provide an incentive to challenge a will, and to more complex family structures with children from previous marriages seeking a share of a parent’s estate from which they have been excluded. Many cases of contesting a will succeed – the actor Nigel Havers for example, secured a six figure sum from his wife’s estate following a challenge (the case was settled before it reached court). But can an ex spouse challenge your will?

The I(PFD)A permits specific categories of individuals to apply for ‘reasonable financial provision’ from a deceased’s estate. They may have been left out of the will entirely or they may believe they are entitled to more than what they have received under the will or the rues of intestacy.

Included in the class of persons who can make a claim are former spouses or former civil partners. (Although they can’t claim if they have remarried.) Permitting a former spouse to make a claim under the I(PFD)A is in some respects an exception to the rules in the Wills Act that prevent a divorced spouse from benefitting from their ex’s will.

Whether or not your ex’s claim is successful will depend on a number of factors, including their own financial resources, any moral obligations you had toward him or her at the time of your death and the size of your estate.

Give the possibility of a challenge to your estate – by your ex or someone else – it is always important to explain to the solicitor preparing your will your reasons for excluding a person who may have been expected to benefit from your estate. Your solicitor should make detailed notes so that they can be considered by a judge who hears any challenge in the future.

Do I Need To Revise My Will If I Get Married?

Under the Wills Act, your will is automatically revoked if you subsequently marry. If, when you execute your will, you are intending to get married you can make the will conditional on the marriage. However the will must state clearly that it is being made in expectation of marrying or entering a civil partnership with a particular person and that you do not wish the will to be revoked by that marriage.

Comment

It’s clear that marriage, divorce and remarriage can all significantly impact the way your assets are distributed upon your death. It’s advisable therefore on these occasions to update an existing will or create a new one that is fully reflective of your wishes.

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