Personal Law

Should I Update My Will After Divorce?

Estimated read time: 3 mins

Carrie Tennick, February 25, 2021

While you’re married, your husband or wife probably features quite prominently in your Will. But after a divorce, it’s important that you update it.

Your Will is still valid after a divorce. But there will be some problems if your partner is named as a beneficiary or executor.

What happens to a Will after a divorce?

After you’re divorced, your ex-spouse won’t be able to inherit any of your estate, even if they were named as a beneficiary. This is because the law then treats your Will as if your husband or wife died on the date your marriage ended. It’s the same for civil partnerships that end in dissolution.

It means that anything they would have inherited would be passed on to the next person entitled to it. This could be your children, your parents or siblings – it depends on your surviving relatives.

In the case of your Will stating that everything should be left to your former partner, your estate will be treated like you had died without a Will – known as dying intestate. And the distribution of your assets may not be according to your current wishes.

The change is automatic. That just shows how important it is that you update your Will as soon as you can after a divorce.

When a former spouse is named as executor

Married couples commonly appoint each other as executors to their individual Wills. But a divorce will affect this aspect of your Will too.

A divorce will leave your ex-partner unable to act as executor. Again, your Will is treated as if they had died on the date you were legally divorced. So if you have only named one executor and it was your ex, your Will is going to be treated as if you didn’t name one at all.

This could lead to problems finding a replacement after your death, which could cause delays and frustration for your loved ones at what is already a difficult time.

After a separation

You might also want to update your Will after separating from – but not divorcing – your spouse. That’s because your original Will is still valid, meaning your partner still stands to inherit everything you set out. And you may not want that to happen.

If you don’t want them to inherit anything – or act as executor – then you should update your Will to reflect your new wishes.

Think about children

Updating your Will is vital to ensure your children receive the inheritance you want them to have. Your own children will be able to inherit from you, even if your Will isn’t updated after divorcing their other parent.

Stepchildren and your former partner’s children won’t automatically inherit anything unless you adopt them. So if you’d like them to benefit from your Will, you’ll have to explicitly state your wishes.

And it’s worth bearing in mind that if you’ve remarried, it’s possible that your own children won’t receive any of your estate, while your stepchildren do. This is because if you die intestate or without updating your Will, most of your estate will typically pass to your spouse. That means they could then leave it to their children, rather than yours.

Spousal maintenance in a Will

If you’re paying your former partner maintenance, you’re not under any legal obligation to continue that by providing for them in your Will. But they could take action following your death. They could make a claim under the Inheritance Act, which allows the court to make decisions on Wills and what has been set out.

The Act lets spouses, former spouses, children and children of the deceased’s family or dependents make a claim for “reasonable financial provision”. So if you have not allowed for this in your Will, your executor may end up dealing with a legal challenge.

Getting the best legal help when updating your Will would help minimise the chances of any potential claims being successful.

For expert guidance with your Will, get in touch. We could help you update your current Will, name a new executor or carry out any other aspect of your estate planning. To find out more, just give us a call or make an enquiry online and we’ll get back to you.

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