Divorce and Wills

Introduction to Marriage, Divorce and Your Will

According to the Office of National Statistics there were 234,795 marriages in England and Wales in 2018 (the last year statistics are available for). For couples of the opposite sex this was apparently the lowest number of marriages in one year on record. There were 108,421 divorces recorded in England and Wales in 2018.

That is a lot of change occurring in people’s marital status over one year. Marriage and divorce change more than the living arrangements of the people involved. Many people don’t understand what effect getting married or divorced has on their will.

How Does Getting Married Affect a Will?

In England and Wales, getting married has important fundamental effects on existing wills. Any “pre-marriage will” made on either side is automatically revoked once the marriage takes place.

If each couple do not make another will after they marry, and before they die, then legally they are regarded as having died intestate. Basically their previous will is nothing more than a piece of paper in the eyes of the law. The rules of intestacy will apply as to how and between whom the deceased’s inheritance and assets are inherited.

Can a Will Made Before Marriage Ever Remain Valid?

If a pre-existing will, made before they marry, includes a clause in stating that the will is not to be revoked when they get married, then the “pre-marriage will” is not revoked when the subsequent marriage to that named spouse happens. However the clause needs to be specific about who the person is that they are intending to marry. This is known as a will made ‘in contemplation’ of marriage or civil partnership.

Wills Made in Other Countries

Not surprisingly laws regarding foreign wills can vary from country to country. If an individual has a will that was made overseas and includes assets in another country, then one should check with a lawyer who is familiar with the law of that specific country as to the effect of a marriage on the will in question.

How Does Divorce Affect a Will?

There are two stages to divorce in England and Wales (the process is due to be revised in Spring 2022):

  • After the grounds for divorce have been agreed, a divorce petition is served by one spouse to the other and filed at Court. The Court will then issue a decree nisi.
  • After six weeks, there have been no reasons presented to the Court not to proceed, a decree absolute is then issued which dissolves the marriage.

Wills Made During Marriage

A solicitor should speak to and advise their client about making a new will as part of their advice during a divorce.

Not surprisingly many individuals do not want their “ex” partner to inherit after they have divorced. Advice should be taken as to the likely effects of excluding a spouse in a new will particularly if the couple are separated but not yet legally divorced. The reason for this is that the excluded spouse could still make a claim against the deceased spouse’s estate for reasonable financial provision if the spouse dies before they divorce.

A person who has divorced should take advice on having a new will drawn up directly after the decree absolute is granted.

The Ideal Timing for a New Will

The majority of Weddings are planned in advance and so it is sensible to factor in a will update to reflect your changed circumstances as soon as you have married, though it’s probably wise to take advice in advance. Having a will updated may not be high on the list of priorities during plans for marriage but given the effect of marriage on an existing will an early visit to a solicitor is advised.

When Children are Involved

When a couple plans to marry or remarry, as well as thinking about provisions for each other, they should consider any children they have with other previous partners or they already have with their intended spouse.

It’s important for a divorcee to review their current will on divorce, as there are often important provisions to consider where they may 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. The interests of children often come ahead of any other disagreements a divorcing couple may have with each other.

Contact us

Legal 500 UK Leading Firm 2021 Need some advice or guidance on divorce and wills?

Call rhw divorce solicitors in Guildford on 01483 302000 or e-mail family@rhw.co.uk

Meet the Family Law Team

Clare McNeill

Clare McNeill

Associate Solicitor
Michelle Davies

Michelle Davies

Legal Secretary
Richard Middlehurst

Richard Middlehurst

Associate Solicitor
Lauren Moir

Lauren Moir

Solicitor
Hannah Gibbons

Hannah Gibbons

Trainee Solicitor

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