Your Will After Separation: What Happens Before You Divorce

When a marriage or civil partnership breaks down, most people’s thoughts turn to the practical and emotional upheaval of separation — not to their will. But this is precisely the moment when your existing will can cause real problems, and the gap between separation and final divorce is longer than most people realise. It can easily run to a year or more, and during that entire period your will remains legally valid and unchanged.

This guide explains what happens to your will when you separate, why separation is not the same as divorce in law, what steps you should take immediately, and how to protect your estate until the divorce is finalised.

Separation does not revoke or change your will

This is the single most important point: separation has no legal effect on your will. Your existing will remains fully valid the moment you leave the family home, sign a separation agreement, or even move to a different country. Nothing changes automatically.

That means if your will currently leaves your entire estate to your spouse, and you die during the separation period — before the decree absolute or final order is issued — your spouse will inherit everything exactly as the will directs. The fact that you are separated, estranged, or in the middle of contested divorce proceedings is legally irrelevant.

By contrast, once a divorce is finalised, the law automatically treats any gift to your former spouse in an existing will as if they had died on the date of the final order. But this protection only kicks in at the very end of the divorce process, not at the start or middle of it.

The risk: dying intestate or under an outdated will

Two equally serious risks exist during the separation period:

• You die with an existing will that gives everything to your spouse. They inherit as if nothing had changed. Your new partner, your children from a previous relationship, or anyone else you now want to benefit will receive nothing.
• You die without a will (intestate). Under the intestacy rules, a separated spouse who is still legally married to you inherits a substantial portion of your estate — currently the first £322,000 plus half of everything above that. A separated cohabiting partner inherits nothing under the intestacy rules unless they make an Inheritance Act claim.

Neither outcome is likely to reflect what you actually want. The solution is the same in both cases: make or update your will as soon as possible after separation.

Does marriage revoke an earlier will?

Yes — and this is often forgotten. Under section 18 of the Wills Act 1837, a will is automatically revoked when you marry or form a civil partnership. This means that if your pre-separation will was made before your current marriage, and you never made a new will after marrying, you may already have no valid will at all.

Separation does not undo this revocation. You need to make a new will from scratch.

Separation and cohabiting partners

If you are not married and separate from a cohabiting partner, the position is slightly different. There is no legal status of “separated cohabitant” — you are either together or not, in practical terms.

Any gift to your former partner in your will remains valid until you either revoke the will, write a new one, or formally exclude them. Unlike a divorced spouse, a cohabiting ex-partner is never automatically excluded from your will by law — there is no equivalent of the divorce revocation rule.

Equally, if you have no will, a cohabiting ex-partner receives nothing under the intestacy rules, which could create hardship if you still share a home, children, or financial arrangements with them. Make a new will that reflects your actual intentions.

What about jointly owned property?

If you own property with your spouse as joint tenants, the survivorship rule applies: if you die, your share passes automatically to your spouse regardless of your will. The will has no effect on jointly held assets in this form.

To break this link, you (or your solicitor) can serve a notice of severance converting the ownership from joint tenancy to tenants in common. Once severed, each party owns a defined share that can be left by will. This is one of the most important practical steps to take on separation, alongside updating your will.

Note that severance does not require your spouse’s consent — you can serve the notice unilaterally, registered at Land Registry. But take legal advice, because severance may affect your overall divorce settlement.

What about pension nominations and life insurance?

Your will does not control these. Pension death benefits and life insurance written in trust pass according to a separate nomination form or trust deed, not through your estate. If your current nomination names your spouse, they will receive the proceeds even if you are separated.

Review and update all beneficiary nominations at the same time as you update your will. Contact your pension provider and insurer directly; these forms are straightforward to change.

Lasting power of attorney during separation

If you have a lasting power of attorney (LPA) that appoints your spouse as your attorney, that appointment does not change on separation. Your spouse retains full authority to make decisions on your behalf — for finances or health — unless you revoke the LPA.

Revoke the existing LPA and create a new one appointing a trusted friend, family member, or professional as soon as possible after separation. The same logic applies to an enduring power of attorney that has not yet been registered.

Practical checklist: what to do on separation

1. Make a new will immediately. Do not wait for the divorce to conclude. Appoint new executors, new guardians for any children, and name the beneficiaries you actually want.
2. Sever any joint tenancy on property you own with your spouse, if appropriate. Take legal advice about timing relative to your divorce proceedings.
3. Update pension and life insurance nominations with each provider directly.
4. Revoke and replace any LPA that appoints your spouse as attorney.
5. Check any trusts you are a trustee of — removing a spouse as co-trustee may require a deed of retirement.
6. Review again after the final divorce order. Once the divorce is finalised, the automatic revocation rule applies to gifts to your ex-spouse, but you should still make a fresh will to reflect your circumstances going forward.

Summary

• Separation does not change your will in any way — gifts to a separated spouse remain fully valid.
• The automatic revocation of spousal gifts only happens when the divorce is finalised (decree absolute / final order), not at the point of separation.
• If you die intestate while separated, your spouse still inherits under the intestacy rules as if you were together.
• Jointly owned property, pension nominations, life insurance, and LPAs all need updating separately — your will does not cover them.
• The safest action is to make a new will, sever any joint tenancy if appropriate, and update all nominations and LPAs as soon as you separate.