Linda Cummins, head of wills & probate at GWlegal, explains how getting married or getting divorced may have an effect on the legitimacy of already existing wills.

Does marriage or divorce have an effect on your will?

According to the Office of National Statistics there were over 249,000 marriages in England and Wales in 2016, alongside just under 102,000 divorces of opposite sex couples and 338 of same sex couples in England and Wales in 2017.

But despite the large number of unions and separations, there is often confusion about what happens to an existing will when the will maker either gets married, has a civil partnership or gets divorced.

How does marriage affect a will?

Pre-existing wills

In England and Wales, marriage can have a profound effect on existing wills. Ie if a person already has a will in existence before they legally marry their beloved, the ‘pre-marriage will’ is automatically revoked once the marriage takes place.

If an individual does not subsequently make another will after they marry and before they die, then legally they are regarded as having died intestate. The rules of intestacy will apply as to how and between whom the deceased’s inheritance and assets are inherited.

Wills with clauses

A deceased testator can, however, include a special clause in their will before marriage, specifically stating that the will is NOT to be revoked if their impending marriage to their intended named spouse takes place. In this case, the ‘pre-marriage will’ is NOT revoked when the subsequent marriage to that named spouse happens. This can be referred to as a will made ‘in contemplation’ of marriage or civil partnership.

Foreign wills

Laws regarding foreign wills can vary from country to country. Therefore, if an individual has a foreign will which deals with assets in another country, then it would be wise to check with a lawyer in the other country as to the effect of a marriage on the foreign will.

How does divorce affect a will?

Divorce basics

Very simply put, there are two stages to divorce in England and Wales:

• After the grounds for divorce have been established, a divorce petition is served by one spouse to the other and filed at Court. Once all the necessary legal requirements have been satisfied, the Court will then issue a decree nisi.
• If, after another six weeks, there have been no reasons presented to the Court not to, a decree absolute is then issued which dissolves the marriage and the parties are deemed divorced.

Wills made during marriage and before divorce

Often divorcing couples will have already spoken to their solicitor about making a new will during the proceedings and before the decree absolute is granted. But if not, it is a good idea to do so and make a new will.

Most people do not want the ‘ex’, or soon to be ‘ex’, to inherit. However, advice should be taken as to the effect of excluding a spouse in a new will when the couple are separated but not yet legally divorced. This is because the excluded spouse could still make a claim against the deceased spouse’s estate for reasonable financial provision if the spouse dies before the pair divorce.

Dying with a will made during marriage and before divorce

In England and Wales, if a person gets divorced, ie once the decree absolute is granted, then any will they have already made is NOT automatically revoked by the divorce. It exists and is still valid. However, the effect of the divorce does change the way the former spouse is treated in law.

These changes affect any gifts to the surviving spouse or the appointment of them as executors under the existing will. This is because in law, an ex-spouse is, on divorce, treated as having died before the deceased, so any gifts to that ex-spouse as a beneficiary fail and so does any appointment of them as executor.

Should I make a will before or after marriage and divorce?

Weddings usually don’t occur at short notice, so it is sensible to factor in a will update soon before/after the big day. Also, when you consider most couples get married at a weekend (when most law firms are closed) and the happy couple usually go away on honeymoon soon after their wedding, this leaves little or no time to go and see their solicitor about their will. Lawyers may not be high on the list of priorities when couples are floating on the cloud of post wedded bliss, but a visit to update a will is sensible.

If a couple plans to marry or remarry, they also need to think about provisions for each other and any children they have with any other parent or they have with their intended spouse.

It is similarly important for a divorcee to review their current will on divorce as they may still want their ex-spouse to be an executor or trustee of any trust in their will (or arising on their death), for the benefit of any children they have together.

About the author

Linda Cummins is head of wills & probate at GWlegal, @GWlegal.

See also

Changing your will after divorce or separation

How can DIY wills lead to inheritance disputes?

Find out more

Apply for decree nisi (Gov)

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