Divorce and The Importance of Updating your Will
- oliviaholmes7
- 2 hours ago
- 3 min read
When a couple goes through a divorce or dissolves a civil partnership, there is a common misconception that their Wills automatically become invalid once the process is finalised. In reality, the need to update or revoke a Will is sometimes overlooked altogether.
However, this is not correct.
If you do not prepare a new Will after your divorce, your existing Will remains valid, even if many years pass before your death. This could result in your estate being distributed in a way that no longer reflects your intentions.
Divorce does not automatically revoke a Will, nor does it reinstate any Will made prior to the marriage. While marriage generally revokes an earlier Will (unless it was made in contemplation of that marriage), the same rule does not apply when a marriage or civil partnership ends.
Tax Considerations
While married, it is often tax-efficient to leave your entire estate to your spouse on death, as transfers between spouses are usually exempt from Inheritance Tax. In addition, on the second death, Executors may be able to combine allowances from both spouses, potentially allowing up to £1 million to pass before Inheritance Tax becomes payable.
After divorce, however, these tax advantages no longer apply. This makes it particularly important to review and update your Will to reflect your new financial and personal circumstances.
If you die before your divorce is finalised
If you die before your divorce is finalised, your Will remains fully valid. As you are still legally married at the time of death, any provision in your Will leaving your estate to your spouse will take effect. This could mean that your spouse inherits everything, even if this no longer aligns with your wishes, potentially leaving other loved ones unprotected.
It is therefore strongly advisable to review your Will early in the divorce process and make any necessary changes before the divorce is concluded.
If you die after your divorce is finalised
Making a new Will after divorce ensures your estate is distributed according to your current wishes and allows you to take into account any financial arrangements arising from the separation. It also provides an opportunity to make provision for a new partner or any children.
If you do not update your Will, your former spouse will be treated as though they had died before you. As a result, any gifts to them, or any appointment of them as Executor or Trustee, will fail.
In many cases, Wills leave the majority (or entirety) of an estate to a spouse without any alternative provisions. If this applies and your Will is not updated, your estate may be treated as if you died without a valid Will. It will then be distributed under the Rules of Intestacy, which may not reflect your wishes and could leave some beneficiaries without support.
Administering an estate under these rules can also be time-consuming and expensive.
Additional Considerations
Creating a new Will can also help reduce the risk of claims under the Inheritance (Provision for Family and Dependants) Act 1975. If a financial settlement has not been finalised, a former spouse may still be able to bring a claim against your estate, particularly if they can demonstrate financial dependence, for example, through maintenance payments.
A properly updated Will can help safeguard your estate against such claims.
How can we help?
Our Private Client Team have the experience and knowledge to assist you in your Estate planning and can help ensure that you have peace of mind that your wishes are carried out following your death.
We provide competitive fixed fees wherever possible and our team is always up to date with the latest changes in legislation to ensure that you are advised correctly.
If you would like to discuss putting a Will in place or simply making changes to your current Will, please contact us by clicking the button below:
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