Updating your will, or making one, is probably not going to be highest on the priority list when you are going through a divorce or separation. But it is crucial if you want to make sure your assets do not go to your ex when you die. This article explains the rules when you separate or get divorced.
Updating your will, or making one, is probably not going to be highest on the priority list when you are going through a divorce or separation. But it is crucial if you want to make sure your assets do not go to your ex when you die. This article explains the rules when you separate or get divorced.
What happens if I die without making a will before my divorce is finalised?
If you haven’t made a will, then when you die, your estate will be paid out according to the rules of intestacy (see below). This means that if you are still married, and without children, your spouse will receive everything. However, if you are married with children, your spouse will receive all your personal possessions, the first half of £270,000 and half of any remaining value. Any children receive the other half when they attain 18 years of age.
A spouse has the right to inherit under intestacy rules even if, at the time of your death, you were separated and started divorce proceedings. It is important to remember you are still considered being legally married to someone until you receive the final order confirming the divorce has been completed.
What are the rules of intestacy?
Anyone who dies without having made a will at all or has made one, but it is invalid, will be deemed to have died “intestate”.
The rules of intestacy have not changed for many decades and therefore do not take account of modern family relationships, making no provisions whatsoever for unregistered or unmarried partners. In reality, this means that if you are not married and die, your partner will not automatically inherit your estate. This could affect both new and old relationships alike. Intestacy rules include:
- Only biological and adopted children are recognised for the purposes of inheritance; they do not acknowledge any step children, for example.
- The estate will be divided in a specific way. So, if someone died who was married and had no children, their entire estate will go to their spouse.
- If someone dies who was married but had children, the first £270,000 of their estate goes to their spouse together with their personal possessions. Anything over £270,000 will be divided, with the spouse receiving 50% and the children entitled to a share of the remaining 50%.
- If the deceased is not married, but living with their long-term partner, they will not be entitled to receive anything from the estate. Cohabitees are not protected under intestacy rules.
- If the person who died was single, but has children, the whole estate will be divided amongst them. If there are no children, then estate may go to the deceased’s parents, siblings, or other relatives.
- Any assets owned jointly with another person may not pass in accordance with the rules set out above, but instead pass to the surviving joint owner.
What happens to jointly owned assets?
It is important to deal with any jointly owned assets because it is not possible for some jointly owned property or money to be passed under the provisions of a will. Instead, it will pass to the surviving joint owner.
If you own property with your ex as “joint tenants”, your interest in the property cannot be left by will, and if the situation is not remedied, will automatically pass to your ex when you die. This issue can be addressed by converting ownership to that of “tenants in common”, which allows you to leave your share in any jointly owned property to whoever you want in accordance with your wishes. You should also take steps to deal with any bank accounts held in joint names.
What happens if I haven’t updated my will during the divorce?
If you have a will but haven’t got around to getting it updated during separation, the terms of the will remain effective until the final divorce order is granted by the court. So, if you made your ex an executor or gave them any gifts from your estate, they remain valid. This is still the case if you have been separated for many years but never divorced.
After the divorce is finalised and the final order received, any will naming your spouse as beneficiary is dealt with as though they had died during your lifetime. Essentially, appointments and/or gifts will not apply. This is fine where other people have been appointed as executors, but issues could arise if you left your whole estate to your ex-spouse. Here, unless you have made specific default provisions setting out what should happen in these circumstances, your estate will be dealt with under intestacy rules.
Should I write a will if I am getting divorced?
Ideally, as soon as possible, after separating or formally beginning the divorce process, you should either update your existing will or make one. The terms of the will should reflect what you want to happen to your estate after you divorce. If, after being finalised, it turns out the terms of your new will cannot be carried out, for example, because you sold property included in the will as part of the divorce settlement, then your will should be updated to reflect the situation.
Does my divorce mean my will is automatically revoked?
As stated above, your will remains valid, but in respect of inheritance, your ex is treated as if they had died at the point your marriage or civil partnership is dissolved. If your will does not specify what happens in the event of your ex’s death (or perceived death under the above rules), then the rules of intestacy may apply.
Can my ex make a claim on my estate?
Ex-spouses can make a claim on the estate if they can show they were being financially maintained by the deceased person. If you are financially maintaining your ex after divorcing, such as paying maintenance, and have excluded them from your will, they could potentially make a claim under the Inheritance Act. The best thing to do in these circumstances is to draft your will in such a way that gives your executors the flexibility to negotiate with your ex in order to protect the interests of the other beneficiaries. In such circumstances, it is important to obtain legal advice.
What happens to your Will in the wake of divorce?
It is common for people going through divorce to assume that their old Will automatically disappears or that divorce magically updates it for them. In fact, divorce does not revoke your Will in its entirety. What happens is more nuanced in that assets and appointments that name your ex-spouse or civil partner are treated as if that person predeceased you, essentially being as if they had died before you did. This effectively cancels gifts and roles assigned to them but leaves the rest of your Will intact.
That is why simply waiting to see what happens is rarely a sensible strategy, as the things that remain silent in your Will could have unintended outcomes.
Why updating your Will should be part of your divorce checklist
Updating your Will should be treated as an essential legal task during divorce, rather than an optional wait until after the divorce scenario. This is because:
- It prevents unintended beneficiaries: If your Will names your ex-spouse as a primary beneficiary (for example, as the person to receive your estate or most assets), those gifts will fail after divorce. Unless you have backup instructions in your Will (called default provisions), these unallocated assets could fall into intestacy rules — where statute, not your wishes, decides who inherits. Under those rules, distant relatives or people you no longer want to inherit might take your assets.
- It protects new and blended family structures: These days, people often remarry, cohabit, or have children from different relationships. If your Will was drafted for a different life stage, it may not reflect your current family realities. Without updating, partners you want to protect may get nothing; children you care about could be left without appropriate guardianship instructions; and pension beneficiaries may not align with your estate planning goals.
- It reduces the risk of legal challenges: Estate disputes are becoming increasingly commonplace, with contests around wills up significantly in recent years. Some common grounds for legal challenges include claims about mental capacity, undue influence, or simply dissatisfaction among disinherited relatives. Preparing your Will thoughtfully ahead of time, and documenting your reasoning where appropriate, can dramatically lower the risk of costly litigation.
Steps you can take to prevent Will disputes after divorce
Updating your Will is not just about removing names from a piece of paper; there are practical steps you should follow to help reduce challenges and ambiguity later on. This includes:
- Seeking specialist legal advice early: Talk to a solicitor experienced in both family law and estate planning. Divorce lawyers may focus on financial orders, while estate lawyers understand the nuances of wills and intestacy consequences such as tax liabilities. Ideally, you should coordinate these advisors so that financial settlements and inheritance plans are aligned.
- Decide whether to amend or rewrite your Will: There are two main approaches here:
- Codicil: This is a formal document that amends parts of an existing Will. It is useful for minor changes, but multiple codicils can lead to contradictions and confusion, making disputes more likely.
- New Will: In most divorce scenarios, drafting a completely new Will ensures clarity. A new Will can revoke all prior Wills and codicils explicitly and reflect your current circumstances with clean instructions.
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- Choose beneficiaries strategically: Decide who should inherit and in what proportions. Consider naming backup or contingent beneficiaries, and if you have minor children, appoint guardians and trustees.
- Re-assess executors and trustees: Your executor, the person who administers your estate, may well be your former spouse. Removing and replacing them with trusted individuals or professionals can help avoid conflicts and ensure your estate administration runs smoothly when the time comes.
- Update other estate documents: Updating your Will is essential, but it isn’t the whole picture. Review joint property ownership, pension beneficiary nominations, insurance policies, and any trust arrangements. Failing to deal with associated documentation can mean assets pass outside your Will in ways you did not intend.
- Document your intentions where appropriate: While not legally binding, a letter of wishes — a document that explains why you made certain choices — can persuade executors and trustees about the reasoning behind your intentions and help reduce challenges later on.
Hypothetical case examples
Here, we have two hypothetical cases that are a useful illustration of real-life scenarios that can easily occur when parties divorce but fail to address their Will.
- Ben and Laura: During the marriage, Ben creates a Will with all his estate going to his wife Laura. During their divorce proceedings, Ben becomes estranged from his family and doesn’t update his Will. After the divorce is final, he tragically dies without changing his Will. This means Laura is treated as predeceased and her gift from Ben lapses. Ben’s estate could pass to his siblings or distant relatives under intestacy rules, which because of the estrangement is exactly the outcome Ben hoped to avoid. Clearer planning could have ensured his children or new partner were protected.
- Sophie’s complex family: Sophie and Tom divorce after a ten-year marriage. Sophie has since cohabited with her new partner, with whom she has a young child. Sophie’s old Will names Tom as her executor and beneficiary. Without updating the Will, Tom, who lives overseas and has little contact with Sophie’s life today, remains her executor in law, and Sophie’s young child may have no appointed guardian. A properly updated Will naming Sophie’s preferred guardian could prevent future disputes or court interventions.
Preventing challenges in the future
Updating your Will before finalising your divorce gives you greater confidence and control over your estate if the worst happens. Doing it promptly and with the help of professionals reduces the risk that relatives, ex-partners, or even courts decide who ultimately benefits from your estate. Thoughtful estate planning after a divorce is not merely a boring paperwork exercise; it is one of the strongest safeguards you can put in place to make sure your intentions are legally set out to protect the people you care most about.
If you are considering separating or divorcing and you require legal advice to understand your options, contact specialist divorce solicitor Holly Lamb of Stowe Family Law. A Partner and Head of her team at this highly-respected family law firm, Holly is an extremely accomplished, intelligent, and proven divorce solicitor and family lawyer.
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