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What happens to your will after divorce?

Hana Gwyn | What you need to know about your will after divorce

When a couple is going through a divorce or dissolving a civil partnership, there’s often a misconception that their wills automatically become invalid once the divorce is finalised. In some cases, the issue of updating or revoking their wills may even be overlooked entirely.

This is not the case.  If you do not create a new will after divorce, your existing will remains valid – even if years pass before your death - which could result in your estate being distributed in ways that no longer align with your wishes.

A divorce does not automatically revoke your will, nor does it reinstate the will you had before your marriage. While marriage automatically revokes any previous will (unless it was made in contemplation of that marriage), the same does not apply to divorce or the dissolution of a civil partnership.

Tax considerations

When a couple is married, it is generally more tax-efficient to transfer the entire estate to the surviving spouse upon death. This means that the deceased's estate is exempt from inheritance tax. Additionally, upon the second death, the executors can utilise the available tax allowances for both the deceased and the spouse, potentially totalling up to £1 million before any inheritance tax is due.

However, following a divorce, these tax benefits no longer apply. This makes it even more critical to review and update your will after divorce to reflect your new financial and familial circumstances.

What happens if you die before your divorce is finalised

If you pass away before your divorce is finalised, your will remains valid. This means you are still legally married at the time of your death, and if your will designates your spouse as the sole heir, they will automatically inherit your entire estate. This may not align with your intentions, leaving your loved ones unprotected.

It's strongly advised to address your will early in the divorce process and make any necessary changes to ensure it accurately reflects your wishes before the divorce is finalised.

What happens if you die after your divorce is finalised

Creating a new will after a divorce allows you to ensure your estate is distributed according to your wishes and take into account any financial obligations arising from the divorce. If you're in a new relationship, you can also make provisions for your new partner and any children you may have.

If you don’t update your will after divorce, your ex-spouse will be treated as having pre-deceased you. As a result, any gifts made to them or any appointment as executor or trustee will fail.

Often, couples leave the majority or entirety of their estate to their spouse without any subsequent provision. If this is the case and your will isn’t updated, your estate will be treated as if you had no will at the time of your death, subjecting it to the "rules of intestacy." This can lead to your estate being distributed in a way that doesn’t reflect your intentions, potentially leaving some loved ones without support. Following these rules can also be a lengthy and costly process.

By making a new will, you can help prevent claims under the Inheritance Act. If a financial settlement has not been reached, an ex-spouse may still be able to claim against your estate if they can demonstrate they were financially dependent on you, such as receiving maintenance payments. A new will can help protect against such claims.

How can we help?

Our personal law team has the knowledge and experience to help you to get your affairs in order so that you can have peace of mind about what will happen to your estate after divorce.

We aim to work to a fixed price wherever possible and many of our lawyers are accredited by the Society of Trust and Estate Practitioners. This means we are always up to date with the latest changes in legislation and are continuously developing our professional knowledge to ensure that we are advising you correctly.

For a limited time, we’re planting a tree for every will we write or update in partnership with the Yorkshire Dales Millennium Trust. By updating your will with us, not only will you be protecting your assets for your family, you will also be creating a sustainable legacy for future generations to benefit from and enjoy.

If you need help making, updating, or re-signing and re-witnessing a will, contact Personal Law Partner Hana Gwyn on 01423 502211 or ku.oc1738873279.fcl@1738873279nywgh1738873279. For other advice in relation to divorce, contact Family Law Partner Ellie Foster on 01423 851 112 or ku.oc1738873279.fcl@1738873279retso1738873279fe1738873279.

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