With all the other issues to think about when going through a divorce, updating your will can easily fall between the cracks.
But while divorce does not automatically revoke your will, it can leave it in a bit of a jumble. This is because the will remains valid, but it will be read as though your ex-spouse is not in it. So any provisions that include your ex-spouse will be excluded from your will and any gifts made to your ex-spouse will fall back into your estate to be divided among the other beneficiaries.
And don’t forget that in the days/weeks/months leading up to your divorce, your will is still valid. So if you die prior to the decree absolute, your spouse will inherit in accordance with your will. If this is not what you would want, you may wish to think about reviewing your will as soon as you are aware that you are going to get divorced.
Another thing to be aware of is what happens if you re-marry. Marriage or civil partnership automatically revokes any previous wills, so you must make a new will at this point too.
Key points to consider when reviewing your will
Below are some points you may wish to consider:
- Did you appoint your spouse as executor? If so, you will need to consider who you would like to instruct in their place. You may appoint more than one executor.
- Did you leave the bulk of your estate to your spouse? If so, if you don’t amend your will you will effectively die intestate and it will be distributed in accordance with the intestacy rules. You will need to amend your will to reflect who you would like to leave your estate to.
- You will need to consider your inheritance tax liability. Married couples benefit from a transferable nil-rate band, enabling them to transfer up to £325,000 tax-free to their spouse on their death. You may therefore need to consider your tax planning strategy in light of your divorce.
- You may wish to appoint a guardian for your children in your will in the event that something happens to you and your divorced spouse.
I’m getting divorced in Scotland. Is this different?
As of 1 November 2016, Scottish succession law was amended in relation to divorce and wills so that it echoes the position in England and Wales and Northern Ireland – see the article ‘Divorce and the effect on wills in Scotland’. Unlike in the rest of the UK, however, in Scotland your will is not automatically revoked on remarriage, and there are different rules in relation to inheritance, with a spouse/civil partner and children entitled to a ‘legal right’ to inherit a set portion of your estate.
Divorce and remarriage can make providing for your loved ones a little more complicated, so it is always wise to speak to a qualified advisor to ensure all angles have been considered.