When planning for the future, drafting a will is one of the most significant legal acts an individual can undertake. A will determines how a person’s estate will be distributed upon their death, and ensures their wishes are honoured. However, life circumstances can change, and major life events such as marriage or divorce often prompt revisiting or rewriting estate plans. It’s commonly misunderstood whether these milestones automatically affect the validity of an existing will. In the context of English and Welsh law, there are crucial legal provisions you need to be aware of if you are entering into or dissolving a marriage.
This article explores how marriage and divorce can influence the legal standing of a will, the statutory rules that apply, and practical advice to ensure your estate planning remains current and reflective of your intentions.
In England and Wales, one of the most significant consequences of marriage with respect to estate planning is the automatic revocation of any previous will, unless specific provisions have been made. As a general rule, when a person gets married, any pre-existing wills are rendered invalid.
The legal basis for this principle is found in Section 18 of the Wills Act 1837. This legislation establishes that a will is automatically revoked by a subsequent marriage unless the will is made “in contemplation of marriage”. This means that unless your will explicitly states that it was prepared in anticipation of marrying a specific individual, it will no longer be valid once you tie the knot.
This rule aims to protect the interests of the new spouse and recognises that marriage may substantially alter a person’s financial and personal priorities. However, it can also unintentionally disinherit previously named beneficiaries, including children from earlier relationships.
For instance, if someone creates a will stating that all of their assets should be left to their children, but later remarries without updating the will or including a contemplation clause, that will becomes null and void. Should they pass away without drafting a new will after the marriage, they are deemed to have died intestate, and their estate will be distributed according to the rigid rules of intestacy.
The intestacy rules often favour the new spouse and biological children, but they may not reflect the deceased’s exact wishes — especially in blended families, where stepchildren or friends may have been named in the original will.
The law does allow an existing will to remain valid post-marriage, provided it was made in contemplation of the specific marriage. This is a vital legal exception that requires very specific wording. The will must clearly express that it was prepared with the expectation of marrying a named individual.
For example, the will might state: “This will is made in contemplation of my marriage to Jane Smith.” The specificity is crucial; the mention of a potential but unnamed future spouse is insufficient. Furthermore, it’s not enough for the testator simply to have thought about getting married; the contemplation must be express and unambiguous.
A will made in general contemplation of getting married at some point in the future — without reference to a specific person — does not meet the legal requirement. It’s essential to seek legal advice when drafting a will in contemplation of marriage to ensure it is valid and enforceable after the marriage.
If properly executed, such a will survives the marriage and continues to express the testator’s wishes as outlined. This can prevent the complexities and unintended consequences of intestacy or delays due to the will being declared void.
If a person dies intestate – that is, without a valid will – their estate will be distributed under the rules of intestacy, as outlined in the Administration of Estates Act 1925. These rules were last updated substantively in 2020 and establish a hierarchy of beneficiaries.
Under these provisions, a surviving spouse receives the first £270,000 of the estate, all personal possessions, and one-half of the remaining estate. The other half is shared among any children. If there are no children, the spouse inherits the entire estate.
This method does not allow for gifts to friends, charities, stepchildren, or other extended family, and does not provide for any specific instructions that may have appeared in a now-revoked will. It can often lead to distress and legal complications, especially in families with complex dynamics or where dependants were relying on the original provisions of the invalidated will.
Therefore, it is imperative to update or reconfirm your will shortly before or after marriage. Doing so ensures your wishes remain legally binding, and potential conflicts, delays, or financial hardship for your loved ones are minimised.
Unlike marriage, divorce does not automatically revoke an entire will. Instead, English and Welsh law adopts a more nuanced approach. Under Section 18A of the Wills Act 1837, upon the finalisation of a divorce, any references in the will to the former spouse are treated as if that person had died on the date of the decree absolute – the legal end-point of the marriage.
This means that any gift to the ex-spouse or any appointment of the ex-spouse as executor or trustee is no longer valid. The rest of the will, however, remains intact. This legal mechanism aims to prevent ex-spouses from benefiting from the deceased’s estate unless the post-divorce will explicitly states otherwise.
The principle underlying this legislation is common sense: most people who have divorced would not want their former spouse to inherit their assets or manage their estate. However, there are exceptions.
If a person still intends for their former spouse to inherit, they must revise their will post-divorce to clearly affirm this wish. Without such affirmation, the law automatically revokes that part of the will upon divorce. Moreover, if the wording of the will leaves everything to “my spouse” and the marriage then ends, that gift will fail, potentially resulting in partial intestacy.
It’s also worth noting that mere separation is not the same as divorce in terms of its effect on a will. Couples who are separated but not legally divorced are still considered married in the eyes of the law. This means that unless a new will is drawn up removing the spouse as a beneficiary, any gifts to them or appointments of them as executors will remain valid.
A judicial separation – an alternative legal recognition of marital breakdown without divorce – similarly does not revoke or affect a will in the same way. The basis for testamentary revocation upon divorce relies specifically on the granting of the decree absolute.
For individuals undergoing a separation, it’s especially important to update their will to reflect any changes in relationships and to protect the interests of any children or dependants.
Given the considerable impact marriage and divorce can have on the validity and operation of a will, the importance of regularly reviewing one’s testamentary documents cannot be overstated.
Major life events – birth of children, loss of a family member, acquiring new properties, relationship changes, or shifts in financial circumstances – all warrant a review of your will. Implementing a habit of revisiting your estate plan every few years, or immediately following a major life event, ensures your intentions are accurately captured and legally enforceable.
Failure to keep an updated will can lead to unintended consequences such as disinheriting loved ones, unnecessary legal disputes, or property being distributed against your wishes. It can also result in tax inefficiencies that reduce the value of the estate left to beneficiaries.
Due to the technicalities involved in ensuring a will remains valid throughout changes in personal circumstances, professional legal advice is highly recommended. A solicitor specialising in wills and probate can provide insight on the appropriate wording, structure, and legal safeguards to preserve your estate planning intentions.
Whether you are planning to marry, currently separated, getting divorced, or have already experienced such events, a legal expert can help you understand your rights and responsibilities. Moreover, they can guide you through drafting a new will or amending an existing will by way of a codicil.
It is particularly advisable to explore the potential tax implications of your estate, including Inheritance Tax liability, which may change depending on spouse status and exemptions in play. These legal and financial considerations further underline why wills should not be treated as once-done affairs.
The legal impact of marriage and divorce on a will reflects the importance of adapting estate planning to life’s changes. While a new marriage will typically revoke a former will unless there is a clear statement of contemplation, divorce does not nullify a will outright, but treats any references to the ex-spouse as if they had predeceased the testator. These rules serve to safeguard the interests of new spouses and survivors but can lead to unintended consequences for other family members if not carefully managed.
Wills should be living documents – not static reflections of one’s past intentions. Updating them as personal circumstances evolve ensures that they continue to honour your wishes and provide for those you care about. In doing so, you can reduce the risk of legal complications, family disputes, and financial hardship for your survivors.
Estate planning is rarely straightforward, and the intertwining of personal relationships and legal obligations demands thoughtful and proactive management. With professional guidance and regular updates, you can ensure that your legacy is preserved in accordance with your evolving life.
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