WillSafeUK

Will Trust and Divorce UK: What Happens to a Trust Set Up in a Will After Divorce?

Updated 31 May 2026 · 8 min read · Wills & Family Law

Divorce automatically removes a former spouse from your own will under the Wills Act 1837 s.18A — but it does not dissolve a trust that has already been created, either during your lifetime or by a deceased relative’s will. Understanding which trusts are affected by divorce, and what steps to take, is essential for protecting your estate plan.

What Divorce Does Automatically: Wills Act 1837 s.18A

Section 18A of the Wills Act 1837 provides that if a testator’s marriage or civil partnership is dissolved or annulled after the date of the will:

This provides some automatic protection — but only for the testator’s own will. It does not affect trusts that were separately constituted, trusts created by a third party’s will, or trusts that had already vested before the divorce.

What Divorce Does NOT Affect

Options to Modify an Existing Trust After Divorce

If a former spouse is a trustee or beneficiary of an existing trust and you want to change their position:

  1. Exercise trustee discretion — in a discretionary trust, trustees are not obliged to make payments to any beneficiary. They can simply decline to exercise their discretion in favour of the former in-law.
  2. Deed of appointment to exclude — if the trust deed contains a power to exclude persons from the discretionary class, the trustees can exercise it to remove the former spouse by deed.
  3. Remove the former spouse as trustee — by deed under TA 1925 s.36 (with the other trustees’ co-operation) or by court order under s.41 if they refuse.
  4. Variation of Trusts Act 1958 application — to vary the trust terms with court approval, where adult beneficiaries consent and the court approves on behalf of minors/unborn.
  5. Saunders v Vautier direction — if all adult beneficiaries of full capacity agree, they can direct the trustees to vary the trust or end it entirely.

Family Court Powers Over Trusts in Divorce Proceedings

The family court can take trust interests into account when assessing financial resources in divorce proceedings under the Matrimonial Causes Act 1973 s.25. A discretionary trust in which a party is a likely beneficiary may be treated as a financial resource — particularly if distributions have been made consistently in the past.

The court can also set aside trust transfers made to defeat financial remedy claims under MCA 1973 s.37. Specialist family law and trust law advice is essential in divorce situations involving significant trust interests.

What to Do With Your Estate Plan After Divorce

After a divorce, take these steps immediately:

  1. Make a new will — while s.18A provides some protection, a new will is essential to address residuary substitutions, trustee appointments, and guardianship of children.
  2. Update pension expressions of wishes — contact the pension provider; nominations are not revoked automatically on divorce.
  3. Revoke any LPA naming the former spouse — make a new LPA with updated attorneys.
  4. Review trust trusteeships and beneficiary positions — take legal advice on any trust in which the former spouse has a role or interest.
  5. Consider a new discretionary trust — to protect assets for children in a future relationship-agnostic structure.

FAQs

Does divorce affect an existing will trust?

Divorce does not automatically dissolve a trust that has already been created — whether set up during the marriage by a deed or by the will of a deceased relative that has already taken effect. If a trust was created before the divorce (for example, a grandfather's will that set up a discretionary trust for family members including the son-in-law), the son-in-law's interest in that trust as an existing beneficiary is not automatically removed by the son's divorce. However, if the trust is a discretionary trust (where the trustees have discretion to decide who benefits from the class), the trustees may exercise their discretion to exclude the former in-law from future distributions — particularly if the trust deed does not specify fixed shares. The key distinction is between: (a) vested interests (the beneficiary has a fixed, enforceable right to a share) which cannot be removed without a court order or the beneficiary's consent; and (b) discretionary interests (the beneficiary has a hope of distribution) where the trustees may simply choose not to exercise their discretion in the former in-law's favour.

What does the Wills Act 1837 s.18A say about divorce and wills?

The Wills Act 1837 s.18A (inserted by the Administration of Justice Act 1982) provides that where a testator's marriage or civil partnership is dissolved or annulled after the date of the will: (1) Any appointment of the former spouse/civil partner as executor lapses — they can no longer act as executor. (2) Any gift to the former spouse/civil partner in the will lapses — it takes effect as if the former spouse/civil partner had predeceased the testator at the date of dissolution. However, s.18A only applies to direct gifts and appointments in the will — it does not dissolve a trust that was already constituted during the marriage. For example, if the testator and their spouse jointly set up an inter vivos trust during the marriage, that trust is not dissolved by the s.18A rule (which applies to what the testator’s own will says, not to separately constituted trusts). Similarly, s.18A does not apply to benefits already vested in the former spouse under a deceased third party’s will — those are complete existing trusts.

Can a trust created in a will be varied after the testator has died to remove a divorced former in-law?

If the trust was created by a deceased person's will (for example, a parent-in-law who left assets in a discretionary trust for 'my children and their spouses'), the parent-in-law is dead and cannot change the trust. Options to modify the trust to remove the former in-law: (1) Variation of Trusts Act 1958 — an application to the court to vary the trust terms on behalf of any beneficiaries who cannot consent (minors, unborn). Adult beneficiaries must consent directly. The variation would require showing a 'benefit' to those on whose behalf the court consents — a variation that simply removes a former in-law from the class may not obviously benefit the remaining beneficiaries without more. (2) Exercise of trustee discretion — in a discretionary trust, the trustees can simply not pay anything to the former in-law. There is no right to compel distribution from a discretionary trust. (3) Deed of appointment — if the trust has an express power to exclude persons from the discretionary class, the trustees can exercise that power to remove the former in-law by deed. (4) Variation by deed — if all existing beneficiaries are adults of full capacity and together hold the entire beneficial interest (Saunders v Vautier), they can all consent to a variation that excludes the former in-law.

What happens to a life interest trust created for a spouse who is subsequently divorced?

A life interest trust created by a deceased person's will for the benefit of the testator's spouse (for example, 'I leave my estate to my wife for life, remainder to my children') does not automatically terminate when the wife and a new partner divorce — the trust was created for the wife as an individual, not for a marital relationship. The wife's life interest continues until her death, regardless of any subsequent divorce or remarriage. This is a common situation in second-marriage families: a parent dies leaving their estate to a second spouse for life. If the second spouse later remarries or remarries and then divorces, the life interest survives all those events — the first children from the parent's first marriage will receive the remainder on the second spouse's death in any event. If the testator wanted the life interest to terminate on the spouse's remarriage (common in older wills), an express 'determinable on remarriage' condition would need to be included in the will. Without such a condition, remarriage (and subsequent divorce) do not affect the life interest.

What should someone do with their will trust after divorce?

Following a divorce, there are several important steps in relation to will trusts and estate planning: (1) Make a new will immediately — while s.18A of the Wills Act 1837 removes direct gifts to the former spouse, it does not cover every aspect of the will (residuary clause alternatives, substitute beneficiaries, trustee appointments for ongoing trusts). A new will is essential. (2) Review any existing trusts — check whether the former spouse is a trustee, a protector, or a discretionary beneficiary of any trust. If they are a trustee, steps to remove them by deed should be considered. If they are a discretionary beneficiary, whether to exclude them is a decision for the trustees (or, if they have a fixed interest, legal advice on variation). (3) Review life insurance and pension nominations — divorce does not automatically revoke expressions of wishes or pension nominations. HMRC requires updated nomination forms from pension schemes and insurers after any major life change. (4) Update LPA documents — if the former spouse is named as attorney under an LPA, steps to revoke the LPA and make a new one are essential. (5) Consider trust structures for the future — a discretionary trust for children (excluding any former spouse) is a flexible vehicle for passing assets to the next generation while protecting against claims from future relationships.

Can a divorcing spouse claim against a trust their former partner is a beneficiary of?

In financial remedy proceedings following divorce, the family court has broad powers under the Matrimonial Causes Act 1973 s.25 to take into account all financial resources of both parties — including interests in trusts. A spouse who is a beneficiary of a discretionary trust does not have an enforceable right to a distribution, but the court will look at the reality: if the trustees have consistently paid income or capital to the beneficiary in the past, the court may treat the trust income as a financial resource for spousal maintenance purposes, and may take the trust into account when assessing the divorcing spouse's overall financial position. The court can in some cases make orders that require trustees to exercise their discretion in a particular way (Thomas v Thomas [1995]) — though this is complex and controversial. For the other divorcing spouse — the one who is NOT a trust beneficiary — a trust settled by the other spouse during the marriage may be set aside under the Matrimonial Causes Act 1973 s.37 if it was settled with the intention of defeating a financial remedy claim. Specialist family law and trust law advice is essential in divorce situations involving trusts.

Update Your Will After Divorce

A new will is one of the most important financial steps after a divorce. WillSafe’s DIY will kit for England and Wales helps you put a legally valid will in place quickly — so your estate is distributed according to your intentions, not the old plan that named your former spouse.

Start Your Will ›