Everything you need to know about Wills and Divorce

There is a common misconception that a divorce will revoke or nullify a Will. Similarly, if people have a Will in place, they can forget about it in the event of a divorce and not realise the implications. Divorce has serious consequences on a person’s Will that are often overlooked. It is always important to update a Will where there has been a change of circumstances and that includes following a divorce.

What is the effect of divorce on a Will?

A divorce does not revoke a Will and it will remain valid, even if death occurs years after the divorce causing serious issues. 

Death before divorce finalised

If divorce proceedings have been initiated but not completed before one of the parties die, then the Will remains valid and the other party will inherit under the Will. This may not be what the deceased intended in light of the fact they are getting divorced and so Wills should be something that are considered at the start of proceedings.

Death following divorce

Following a divorce, if a Will is not updated nor the situation of divorce is covered in the Will, the ex-spouse will not inherit but instead be treated as if they died on the date that the decree absolute was granted. This means that the any gift made to the ex-spouse will fail. This may be what the deceased wanted, but that is not always the case and so it is important to update a Will in light of a divorce.

Where the former spouse was due to inherit all (or a significant part) of the estate, then because of the above and without any provisions in place to circumvent these issues, nobody will inherit. This means that intestate rules come into play and can result in the estate not passing to the people the deceased intended. This can be an issue where the deceased remarried and had a new family. Dividing the estate following intestacy rules is both complicated and expensive, often resulting in an outcome that is not satisfactory to those involved and that does not honour the wishes of the deceased.

Issues with Executors

Another implication is where a former spouse is named as executor since this is automatically revoked unless it is specifically covered in the Will for them to continue after divorce. If the ex-spouse was the only executor this will cause issues since there will be no valid executor.

Does a future marriage revoke a Will?

Unlike divorce, marriage automatically revokes a Will meaning that it is no longer valid. This means that when the person dies, the law of intestacy determine how the estate is divided if a new Will has not been executed. The only exception is where the Will specifically covers the issue of marriage and states it will not revoke it. 

Does a Clean Break Settlement affect a Will?

Although a clean break settlement does not affect a Will from being valid (as described above) it does prevent either party from making a financial claim against the other party at any time in the future. This means that a party will be prevented from making Inheritance Act claims on the death of an ex-spouse or from contesting the Will.

Effect of Joint ownership on a Will

It is worth remembering that divorce and the existence of Wills does not affect how property is passed between joint owners of assets. This is likely to be the case with the matrimonial home if owned as joint tenants- the death of one owner means that their share automatically passes to the other. Changing the type of ownership to tenants in common can get around this issue and allow for provisions to be made in relevant Wills dictating who will inherit their share on their death.

Mirror Wills

Many couples will have mirror Wills while they are married that reflect the wishes of their partner in their own Will. There is no legal contract between the two parties and either one can revoke or change their Will, which is particularly relevant where the couple divorce. However, where one party changes their Will, this does not revoke the other party’s mirror Will from remaining valid and so again it is important to keep your own Will updated.  

Considerations of Guardianship in a Will following divorce

Who will take care of any children is something that is generally covered in a Will and needs to be considered in any Will following a divorce. Usually the appointment of a guardian does not take effect if one parent dies where there is a surviving parent. However, where the party making the appointment was named in a Children Arrangements Order as the person that the child should reside with, then the guardianship will take effect at the time of death even if there is a surviving spouse with parental responsibility (unless the surviving parent is also named in the order as someone the child lives with). The guardian will then share parental responsibility with the surviving parent.