The Impact of Divorce on Your Will: What UK Law Says

Divorce is a life-changing event, impacting not only emotional and familial relationships but also financial and legal matters. One area that is significantly affected by divorce is your will. In the UK, the legal landscape surrounding wills and divorce is complex, and it is crucial to understand how divorce might alter your testamentary intentions. This blog post provides a comprehensive guide to the impact of divorce on your will under UK law, covering everything from the legal principles involved to practical steps you should take to protect your wishes.

Understanding the Basics: Wills and Divorce

What Is a Will?

A will is a legal document that sets out how your estate should be distributed after your death. It allows you to specify who will inherit your property, who will act as guardians for any minor children, and who will be responsible for administering your estate (your executor). Without a valid will, your estate will be distributed according to the rules of intestacy, which may not align with your personal wishes.

What Is Divorce?

In the UK, divorce is the legal dissolution of a marriage. It requires a formal process where a court must be satisfied that the marriage has irretrievably broken down. Once the divorce is finalised, it not only ends the marital relationship but also affects various legal and financial rights and obligations between the parties.

The Legal Framework: How Divorce Affects Your Will

The Wills Act 1837 and the Impact of Marriage

Before diving into the effects of divorce, it’s important to understand how marriage affects a will. Under the Wills Act 1837, marriage generally revokes any existing will unless the will was made in contemplation of that marriage. This means that if you get married after making a will, your will is automatically void unless it specifically mentions the forthcoming marriage.

The Effect of Divorce on Your Will: Section 18A of the Wills Act 1837

The main provision of UK law that deals with the impact of divorce on a will is Section 18A of the Wills Act 1837. According to this section, when a decree absolute (the final order in a divorce) is granted, any provisions in your will that relate to your former spouse are automatically revoked.

This has several important implications:

1. Gifts to Former Spouse: Any gift left to your former spouse in your will is automatically revoked, as though the spouse had predeceased you. This means that if your will left a significant portion of your estate to your spouse, that gift will no longer take effect unless you make a new will or amend the existing one.
2. Appointment of Former Spouse as Executor: If your will named your former spouse as an executor, that appointment is also revoked upon divorce. This could lead to complications in administering your estate if you do not update your will, as it may leave your estate without a named executor.
3. Guardianship Provisions: While Section 18A revokes gifts and appointments related to a former spouse, it does not automatically revoke guardianship provisions. If you had named your former spouse as a guardian for your children, this appointment may still stand unless you update your will.

The Significance of a Decree Absolute

It’s important to note that the changes brought about by Section 18A of the Wills Act 1837 only take effect once the decree absolute is granted. If you pass away before the decree absolute is issued but after the decree nisi (the provisional decree), your will remains effective as it was before the divorce proceedings began. Therefore, it’s crucial to review your will as soon as you start divorce proceedings.

Civil Partnerships and Wills

The rules regarding the impact of dissolution on wills are the same for civil partnerships as they are for marriages. This means that if you dissolve a civil partnership, any provisions in your will that relate to your former civil partner will be automatically revoked once the dissolution is final.

Practical Steps: What You Should Do After Divorce

1. Review Your Will

The first and most important step to take after a divorce is to review your will. Even though UK law revokes certain provisions of your will relating to your former spouse, it is essential to ensure that your will still reflects your current wishes. This review should be done as soon as possible after the decree nisi is granted to avoid any complications if something happens to you before the decree absolute.

2. Create a New Will

In many cases, the best course of action after a divorce is to create a new will. This allows you to start fresh and ensure that all aspects of your estate are handled according to your current wishes. When creating a new will, consider the following:

• Beneficiaries: Decide who you want to inherit your estate. You may want to remove your former spouse as a beneficiary and update other beneficiaries, such as children, new partners, or other family members.
• Executors: Choose new executors who will be responsible for administering your estate. This could be a trusted friend, family member, or a professional, such as a solicitor.
• Guardianship: If you have minor children, consider who you would like to act as their guardians in the event of your death.
• Funeral Wishes: If your former spouse was previously responsible for your funeral arrangements, you might want to update this section to reflect your current preferences.

3. Consider Inheritance Tax Implications

Divorce can have significant implications for inheritance tax (IHT). Spouses and civil partners can leave assets to each other free from IHT. However, once you are divorced, this tax exemption no longer applies. This could result in a larger IHT bill for your estate if you leave assets to your former spouse or if the provisions of your will are not updated to reflect your new circumstances.

When creating a new will, it is wise to consider the potential IHT implications and seek professional advice to minimise the tax burden on your estate.

4. Update Other Legal Documents

Your will is not the only document that may need updating after a divorce. Consider other legal documents that may have named your former spouse, such as:

• Powers of Attorney: If you have granted a power of attorney to your former spouse, you may want to revoke it and appoint someone else.
• Pension Nominations: Review any pension nominations to ensure that your former spouse is not still named as a beneficiary.
• Life Insurance Policies: Check the beneficiaries of any life insurance policies and update them if necessary.

5. Communicate Your Wishes

It’s important to communicate your updated wishes to your loved ones after a divorce. This can help avoid misunderstandings and ensure that your estate is handled according to your intentions. Consider discussing your new will with your executors and any family members who may be affected by the changes.

6. Seek Professional Advice

Divorce and estate planning are complex areas of law, and it is always advisable to seek professional advice. A solicitor specialising in wills and probate can help you navigate the legal implications of divorce and ensure that your will is properly updated. They can also advise you on related matters, such as inheritance tax planning and the use of trusts.

Case Studies: How Divorce Can Affect a Will

Case Study 1: The Overlooked Will

John and Mary were married for 15 years before divorcing in 2018. After their divorce, John intended to update his will but never got around to it. His existing will, made during his marriage, left his entire estate to Mary and named her as the sole executor. In 2020, John passed away unexpectedly.

Because John had not updated his will, the provisions leaving his estate to Mary were automatically revoked under Section 18A of the Wills Act 1837. However, John had not named any alternate beneficiaries or executors in

his will, which created a significant problem. As a result, his estate was partially intestate, meaning that part of his estate was distributed according to the rules of intestacy rather than his original wishes. This led to delays, additional legal costs, and family disputes as distant relatives who John had not intended to benefit were entitled to inherit parts of his estate.

Case Study 2: The Complex Family Situation

Samantha and Robert divorced after 20 years of marriage. They had two children together and had both remarried after their divorce. Samantha was diligent and created a new will immediately after her divorce, leaving her estate to her children and appointing her sister as the executor.

Years later, Samantha passed away. Her ex-husband Robert, who had a close relationship with their children, was surprised to find that he had been completely excluded from her will. Although this was Samantha’s clear intention, Robert felt that the children should have had the flexibility to manage the estate in a way that recognised his continued involvement in their lives, particularly concerning decisions about the family home, which had been left to the children.

This case illustrates the importance of considering not just the immediate aftermath of a divorce but also the evolving family dynamics. While Samantha’s decision to exclude Robert was valid, a more nuanced approach might have included setting up a trust or including a letter of wishes to guide the executors and beneficiaries on her broader intentions.

Case Study 3: The Civil Partnership Dissolution

Tom and Edward were in a civil partnership for a decade before deciding to dissolve it. Tom’s will, made during their partnership, left a substantial portion of his estate to Edward and appointed him as the executor. After the dissolution, Tom intended to update his will but assumed that the automatic revocation of provisions related to Edward would be sufficient.

Unfortunately, Tom passed away before he made a new will. The revocation of the provisions relating to Edward meant that part of Tom’s estate fell into intestacy. However, because Tom had no close family, the rules of intestacy meant that distant relatives who he had never met became the beneficiaries, contrary to his wishes to leave everything to friends and charitable organisations.

This case highlights the risks of relying solely on the automatic revocation of will provisions without creating a new will that reflects current wishes.

Common Misconceptions About Divorce and Wills

Misconception 1: Divorce Automatically Revokes the Entire Will

A common misconception is that divorce completely revokes a will. In reality, only the provisions related to the former spouse are automatically revoked. The rest of the will remains valid, which can lead to unintended consequences if the will is not updated. This could leave certain parts of the estate in limbo or result in unexpected beneficiaries if alternative provisions are not made.

Misconception 2: No Action Is Needed If I Don’t Want My Former Spouse to Benefit

Some individuals believe that if they no longer want their former spouse to benefit from their will, they don’t need to take any further action after a divorce. However, it’s important to actively update the will to reflect your new wishes. While Section 18A revokes certain provisions, it doesn’t address other critical aspects like the appointment of new executors, guardians, or the distribution of your estate to new beneficiaries.

Misconception 3: My Will Is Safe Until the Divorce Is Finalised

Another misconception is that a will remains unaffected until the divorce is finalised. While technically true, this can be risky. If you die before the decree absolute is granted, your existing will (including provisions benefiting your spouse) remains fully effective. This underscores the importance of updating your will as soon as divorce proceedings begin.

The Role of Solicitors in Managing Wills and Divorce

Why Legal Advice Is Crucial

Navigating the legal implications of divorce on your will can be complex, especially when dealing with significant assets, blended families, or international elements. Solicitors play a critical role in ensuring that your will reflects your current intentions and complies with the latest legal requirements.

A solicitor can assist with:

• Drafting a New Will: Creating a new will that accurately reflects your wishes post-divorce, including naming new beneficiaries, executors, and guardians.
• Inheritance Tax Planning: Advising on strategies to minimise inheritance tax liabilities in light of your changed circumstances.
• Trusts and Asset Protection: Setting up trusts to protect assets for children or other beneficiaries, particularly in blended families.
• Dispute Resolution: Providing guidance on potential disputes that may arise from the revocation of will provisions or the distribution of your estate under intestacy rules.

Choosing the Right Solicitor

When dealing with divorce and wills, it’s essential to choose a solicitor who specialises in both family law and wills and probate. This ensures that you receive comprehensive advice that covers all aspects of your situation.

The Cost of Not Updating Your Will

Failing to update your will after a divorce can have significant financial and emotional costs. Disputes among family members, delays in administering the estate, and unintended beneficiaries are just some of the potential consequences. The costs associated with these issues can far exceed the expense of updating your will.

Conclusion

Divorce is a major life event that necessitates careful consideration of your estate planning. While UK law provides some automatic safeguards, such as the revocation of certain will provisions relating to a former spouse, it is not a substitute for proactive estate planning. By taking steps to review and update your will, seeking professional advice, and communicating your wishes clearly, you can ensure that your estate is handled according to your intentions.

In summary, after a divorce, it is essential to:

• Review your will immediately and consider drafting a new one.
• Update other legal documents such as powers of attorney and beneficiary designations.
• Consider the tax implications and seek advice on minimising inheritance tax.
• Communicate your wishes to your executors and loved ones to avoid misunderstandings.
• Consult a solicitor who specialises in both family law and wills to ensure all legal aspects are covered.

By addressing these areas, you can safeguard your legacy and provide clarity and security for your loved ones during a challenging time.