Divorce and Wills UK (2026): What Happens to Your Will After Divorce — and Why Separation Is Not Enough

Divorce (or dissolution of a civil partnership) has a specific, limited but important effect on a will under Wills Act 1837 s.18B (inserted by the Law Reform (Succession) Act 1995 s.3): (1) GIFTS TO THE FORMER SPOUSE LAPSE: any gift in the will to a former spouse or civil partner takes effect as if the former spouse died on the date the marriage or civil partnership was legally dissolved. The gift fails — it lapses. If the will says 'I leave my estate to my husband John Smith', and the couple later divorce, the gift to John Smith fails as if he had predeceased. The rest of the estate passes under any residuary gift, or if there is none, under the intestacy rules; (2) THE EXECUTOR APPOINTMENT LAPSES: if the will appoints the former spouse as executor (or trustee), that appointment also lapses on divorce. The former spouse has no authority to administer the estate. If there is no alternative executor named, the estate may require an administrator under a grant of letters of administration with will annexed; (3) THE REST OF THE WILL REMAINS VALID: critically, divorce does NOT revoke the entire will. Gifts to other beneficiaries (children; siblings; friends; charities) remain fully valid. Alternative beneficiary provisions in the will (substitution clauses — e.g. 'if my husband predeceases me, to my children equally') take effect because the former spouse is treated as having predeceased; (4) THE DIFFERENCE BETWEEN DIVORCE AND MARRIAGE: compare with MARRIAGE, which DOES revoke the entire will under WA 1837 s.18 (unless the will was made in contemplation of the specific marriage). Divorce only lapses the spouse's gifts and executor role — the rest survives. Marriage destroys the whole will; divorce merely strips out the former spouse's provisions; (5) DATE OF DISSOLUTION, NOT SEPARATION: the lapse takes effect on the date the final order of divorce is made (formerly the decree absolute). The date of separation, the date of issuing divorce proceedings, and the conditional order (formerly decree nisi) do NOT trigger the lapse — only the final order. A person who separates but does not divorce remains a legally surviving spouse for all purposes.

On intestacy after divorce, the Administration of Estates Act 1925 s.46 and the Intestacy Rules treat the former spouse as if they had already died: (1) DIVORCED SPOUSE TREATED AS PREDECEASED: if a divorced person dies without a will (intestate), or if their will is entirely consumed by the ex-spouse's lapsed gifts, the estate is distributed under the intestacy rules as if the former spouse never existed. The former spouse takes no share; (2) DISTRIBUTION WITHOUT A SPOUSE: the estate then passes according to the priority order of intestacy as if the deceased was single: (a) children (or their descendants by representation) — take the whole estate equally; (b) if no children: parents; (c) if no parents: siblings of the whole blood (or their children); (d) half-siblings; (e) grandparents; (f) aunts and uncles; (g) Crown (bona vacantia) if no family at all; (3) BUT WHAT IF THE WILL STILL HAS OTHER PROVISIONS: if the will had a substitution clause ('if my spouse predeceases me, to my children equally'), the children inherit by substitution — not by intestacy. Many professionally drafted wills include substitution clauses precisely for this scenario. A spouse treated as predeceased triggers the substitution and the children take directly; (4) CHILDREN'S POSITION IS GENERALLY PROTECTED: in most cases, after divorce, the children are the main beneficiaries whether the deceased died with a will (substitution clause) or on intestacy. The practical problem arises when: (a) the will left everything outright to the ex-spouse with NO alternative beneficiary provision — the residue then passes on intestacy; (b) the will appointed ONLY the ex-spouse as executor — administration becomes more complex; (c) the ex-spouse was named as guardian of minor children — this appointment also lapses on divorce; (5) FORMER SPOUSE'S RIGHTS TO CLAIM UNDER IPFDA 1975: even though the former spouse receives nothing under the will or intestacy after divorce, an ex-spouse or former civil partner who was receiving periodical payments (maintenance) under a court order at the time of death may still apply to the court under the Inheritance (Provision for Family and Dependants) Act 1975 for reasonable financial provision from the estate. The right to claim as a former spouse under IPFDA ends if the former spouse has remarried.

This is one of the most common misunderstandings about wills in England and Wales, with potentially devastating consequences: (1) SEPARATION DOES NOT AFFECT A WILL AT ALL: when a married couple separates (stops living together but remains legally married), there is NO legal effect whatsoever on their wills. A separated spouse remains a spouse in law. If one spouse dies during a period of separation, their will remains entirely valid — including any gift to the separated spouse. The separated spouse inherits exactly as the will provides. The separated spouse also inherits on intestacy in the normal way (statutory legacy plus half the residue). The only way to break the legal relationship for will purposes is to obtain a final order of divorce (or dissolution); (2) COHABITING COUPLES — NO PROTECTION AT ALL: for couples who are not married and not in a civil partnership (cohabiting partners), a relationship breakdown has ZERO effect on either partner's will. If the couple separates, the ex-partner remains named as a beneficiary or executor in the old will — and will inherit accordingly. There is no equivalent of the WA s.18B divorce provision for cohabiting couples. The only way to remove an ex-partner from a will is to MAKE A NEW WILL. This is a critical risk: (a) a separated (but not divorced) married person who dies — ex-spouse inherits; (b) a separated cohabiting person who dies — ex-partner may inherit everything if named in the old will; (c) if the cohabiting person had no will — the ex-partner has NO automatic right on intestacy; (3) THE PRACTICAL LESSON: there are two separate risks depending on the relationship type: for married couples: make a new will AFTER the divorce is finalised. Before that, the will's provisions to the spouse remain valid; after that, the old will minus the spouse's gifts applies. Better still: make a new will when separation begins, so the position is clear throughout; for cohabiting couples: a new will is essential on separation — the old will may give everything to an ex-partner, and unlike divorce, there is no statutory lapse.

Remarriage (or formation of a new civil partnership) has a completely different and far more drastic effect on a will than divorce: (1) REMARRIAGE REVOKES THE ENTIRE WILL: under Wills Act 1837 s.18, the act of marriage automatically revokes any existing will unless the will was made 'in contemplation of' that specific marriage (i.e. the will expressly states it is made in contemplation of the marriage to [named person]). This rule is absolute. No exceptions based on the age of the will; how long they were together; or whether the couple intended the will to survive. A will made 20 years ago and never updated is completely revoked the moment the person remarries; (2) EFFECT ON CHILDREN FROM THE FIRST MARRIAGE: after remarriage: (a) if the person makes no new will after the marriage — they die intestate. The new spouse takes the statutory legacy (£322,000 in 2024, indexed) plus half the remaining estate. Children from the first marriage share the other half of the remainder; (b) if the person makes a new will — they can leave everything to their new spouse, entirely cutting out children from the first marriage. There is no automatic protection; (c) this is the classic mirror wills problem — a widower (or divorcee) who remarried and then died either intestate (or with a new will favouring the new partner) leaves children from the first marriage with little or nothing; (3) 'IN CONTEMPLATION OF MARRIAGE' — HOW IT WORKS: a will can survive remarriage if it explicitly states: 'This will is made in contemplation of my marriage to [full name] and shall not be revoked by that marriage.' The statement must name the specific person to be married — a generic statement ('in contemplation of future marriage') is insufficient. This allows couples who are engaged to draft a will in advance of their wedding that survives the marriage; (4) AFTER REMARRIAGE — ALWAYS MAKE A NEW WILL: the practical advice: anyone who remarries (or forms a new civil partnership) should make a new will immediately after the ceremony. The old will is gone. If they die before making a new will: intestacy rules apply; the new spouse takes the statutory legacy; children share the remainder. For blended families, a new will combined with a life interest trust structure protects all the children.

The optimal approach to wills during and after divorce falls into several phases: (1) DURING THE DIVORCE PROCEEDINGS — BEFORE THE FINAL ORDER: the will remains completely valid while the divorce proceedings are ongoing. The spouse remains legally married — any gift to them and their executor role remain in force. Options: (a) MAKE A NEW WILL NOW: the most effective action — draft a new will immediately on separation or during divorce proceedings, replacing the old will entirely. Name new executors; new beneficiaries; include substitution clauses for the children; (b) ALTERNATIVELY WAIT FOR THE FINAL ORDER: if the existing will's provisions to any ex-spouse lapsing on divorce produces an acceptable distribution (e.g. the will contains adequate substitution clauses giving everything to the children), it may be acceptable to wait until the final order takes effect. But this is a risk — if the person dies before the final order, the old will is entirely valid; (2) AFTER THE FINAL ORDER — UPDATE THE WILL: once the divorce is final: (a) the ex-spouse's gifts and executor role have lapsed; (b) the rest of the will operates without those provisions; (c) make a new will to ensure the correct structure — new executor; new beneficiaries; clear substitution clauses; LPA review; (3) WHAT A NEW WILL AFTER DIVORCE SHOULD ADDRESS: (a) appointment of a new executor (the ex-spouse's appointment has lapsed — there may be no executor in the existing will); (b) gifts to children — explicit gifts; guardianship for minors; trust provisions for young children; (c) consideration of whether the ex-spouse should remain a guardian of minor children (the divorce lapses the executor appointment under the will, but guardianship provisions may also need review — the Family Law Act 1989 and the Children Act 1989 govern this separately); (d) pension nomination: update the expression of wishes with the pension provider — the pension scheme's nomination is separate from the will and is NOT affected by the WA s.18B lapse; (e) life insurance nomination: same — update the policy trustees' or insurer's nomination separately; (4) KEY DEADLINES TO NOTE: (a) the 2-year window for a deed of variation runs from the ex-spouse's death — not relevant to divorce planning directly; (b) the final order of divorce — any will made specifically in contemplation of the next relationship should be drafted before remarriage occurs.