Marriage and divorce – how will these life events affect my Will?

Posted by Laura Harper on
Marriage divorce and your Will
Certain big life events should trigger a review of your Will. Marriage and divorce can affect your Will in different ways so it is important to make sure that your Will is still going to take effect in the manner intended. 

Marriage

Getting married is an exciting, stressful and a busy time for everyone involved. However, before the big day it is worth spending 10 minutes to review your Will because not everyone is aware that getting married or entering a civil partnership will automatically revoke a Will that you made prior to that marriage, even if this is not your intention. This is particularly important where you are both coming to the marriage or civil partnership with assets that you might own jointly with other people outside the marriage or if you want to leave assets to anyone other than your intended spouse.

However, you can protect against the automatic revocation of your Will by showing that, at the time you made the Will, you were expecting to marry or form the civil partnership with that person or by making a codicil to that effect. This would be known as a Will 'in contemplation of marriage' and could save a lot of time and expenses further down the line.

A Will in contemplation of marriage must make specific reference to the person that you intend to marry, not just that you one day hope to marry.

If you don't get round to updating your Will before the marriage, the intestacy rules will apply to your estate which means that your assets might not end up with the people you wanted to leave them to, so it is certainly something worth considering.

Divorce

Unlike a marriage, divorce does not automatically revoke your whole Will. Instead, if you divorce or end a civil partnership, your Will takes effect as if your former spouse or civil partner had died on the date that the decree absolute or the dissolution of the partnership was issued.

This means that if your former spouse or civil partner was appointed as your executor, that appointment will be treated as if it were omitted and your reserve executors will take their place. It also means that any gift that you made to them in your will does not take effect.

If you still want to benefit your former spouse or civil partner in your Will, you are able to do so but you would need to expressly state this. If it is your intention to leave your former spouse or civil partner something under your Will, it would be advisable to make a codicil stating that although you are no longer married or in a civil partnership, your former spouse or civil partner should still receive the provision you have made for them under your Will.

It is also worth revisiting your Will in light of the terms such as 'step daughter' and 'step son' to make sure that these are also updated to avoid any confusion.

The only issue might be where you and your former spouse had made mutual Wills. Mutual Wills are those made by two (or more) individuals which contain an express agreement not to revoke or change the terms of the Will without the consent of the other. Whether these Wills are still binding on divorced couple depends on the wording of the Will in question and is assessed on a case by case basis.

It should also be noted that your former spouse or civil partner can still make an application for provision from your estate under the Inheritance (Provision for Family and Dependants) Act 1975 if you support them financially (for example by way of maintenance payments) and do not provide for them in your Will.

If you have made a Lasting Power of Attorney (LPA) then the effect of divorce will mean that the appointment of your spouse as attorney will be revoked. If your spouse was your sole attorney and there were no replacement attorneys then the LPA will cease to be effective. If you appointed your spouse jointly with another attorney(s), rather than jointly and severally then the effect of divorce will mean that the LPA is revoked. 

If you have concerns about any of the issues raised, please contact the Tax and Succession team.

About the Author

Photograph of Laura Harper

Laura advises on a range of private client issues specialising in tax and succession planning for individuals and families based in the UK and with foreign assets.

Laura Harper
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020 7814 5456

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