Key Takeaways
- Yes, your will stays valid after divorce. It is not cancelled. But the law changes how your ex is treated within it.
- Once the final order is granted, your ex-spouse is treated as if they had died that day, so any gift to them fails and their role as executor, trustee or guardian ends. The rest of the will still stands.
- During separation, before the final order, nothing changes. Your estranged spouse still inherits and can still act as your executor.
- Some things sit outside your will entirely, such as jointly owned property and pension nominations, so updating the will alone may not be enough.
Most people assume that once they divorce, their old will quietly sorts itself out. It is a reasonable thing to think, and it is also one of the more dangerous assumptions in family law. The truth sits somewhere in the middle, and the gap between what people expect and what actually happens can leave an ex-partner inheriting far more than anyone intended.
The good news is that a divorce does not tear up your will. The catch is that it only changes part of it, only at a certain point, and only for certain things. Get the timing wrong and your estate could still end up with the very person you have just separated from.
This guide explains exactly what happens to a will when you divorce, the risky in-between period that catches people out, and the assets your will does not even control. If you want advice tailored to your situation, Osbourne Pinner offers a free 30-minute consultation with a family law solicitor.
The short answer
Your will remains valid after divorce. Divorcing does not revoke it or cancel it. What changes is how the law reads it once your divorce is final. From that point, your former spouse is treated as though they had died on the day the marriage ended, and everything else in the will carries on as normal.
What happens to your will once the divorce is final
This comes from section 18A of the Wills Act 1837. Once the final order (previously the decree absolute) is granted, the law treats your ex-spouse as having died on that date, purely for the purposes of your will. In practice that means two things. Any gift you left to them fails, and any appointment of them as an executor, trustee or guardian of your children stops having effect. The rest of your will, everything that does not involve your ex, remains completely valid.
What if your ex was your main beneficiary?
This is where problems creep in. If your ex was your main or only beneficiary and you did not name anyone to inherit instead, that part of your estate can fall into what is called partial intestacy, and be shared out under fixed legal rules rather than by your wishes. The same goes for executors. If your ex was the only one you named, the court may have to appoint someone else, which causes delay and stress for the people you leave behind. A will that names alternatives avoids all of this.
The dangerous in-between: separated but not divorced
Here is the part almost nobody realises. All of the protection above only kicks in when your divorce is final. Until that moment, in the eyes of the law you are still married, and your will treats your spouse exactly as it always did. If you die while separated but before the final order, your estranged partner can still inherit under your will, and can still act as your executor.
Given that a divorce takes a minimum of six months and often much longer, that is a wide open window. We look at this in more detail in our guide on what happens if a separated spouse dies before the divorce is finalised. It is the single biggest reason not to wait.
You do not have to wait for the final order
You can change your will the moment you decide to separate. You do not need to be divorced, or even to have started proceedings. Making a new will straight away is the only way to be sure your estate goes where you want it to during that long in-between period. Our guide to updating your will after divorce walks through what to change and when.
The things your will does not control
A will only deals with assets that pass under it, and some of your biggest assets may not. If you own your home as joint tenants with your ex, your share passes automatically to them when you die, completely outside your will, no matter what the will says. To stop that, you usually need to sever the joint tenancy so your share becomes yours to leave as you choose.
The same goes for pensions and life insurance. These are often paid out based on a nomination form you filled in, sometimes years ago, naming your spouse. Updating your will does nothing to those forms. After a separation it is well worth checking every nomination and changing the ones that still point at your ex.
Remarrying wipes your will completely
One more trap for anyone moving on. While divorce only edits your will, getting married again revokes it entirely, wiping out the whole document unless it was specifically made in contemplation of that new marriage. Plenty of people update their will after a divorce, then unknowingly cancel the lot by remarrying. If a new marriage is on the horizon, factor your will into the plans.
Does the same apply to civil partnerships?
Yes, and it is worth spelling out because people often assume the rules are just for married couples. Dissolving a civil partnership has exactly the same effect on your will as a divorce. Once the dissolution is final, your former civil partner is treated as having died on that date, so gifts to them fail and their appointment as executor falls away, while the rest of the will stands. Forming a new civil partnership revokes your will in the same way that remarrying does. The legal wording differs, but for your will the outcome is identical.
A clean break protects your estate too
Sorting your finances properly on divorce is not just about the here and now. A financial order that includes a clean break, dismissing future claims between you, also helps stop your ex making a claim against your estate later on. Tying up the will and the financial settlement together, with advice on both, is the way to leave nothing loose. You can read more on our wills and divorce page.
Speak to a Family Law Solicitor About Divorce and Your Will
Divorce changes your will, but not always in the way or at the time people expect, and the separation period leaves a real gap. Sorting your will and your financial settlement together is the safest way to make sure your estate goes where you intend.
At Osbourne Pinner, our family law solicitors can guide you through how your divorce affects your will, work alongside our wider team on your estate, and make sure your financial settlement is watertight.
Please note that this article is for informational purposes only and does not constitute legal advice. We always recommend speaking to a qualified solicitor for advice tailored to your specific circumstances.
We offer a free 30-minute consultation to discuss your situation. You can speak with us via video call or visit our offices in Harrow, Canary Wharf, Piccadilly Circus or Manchester. To arrange your consultation, call 0203 983 5080, email [email protected] or complete the form below.
