Divorce and Wills
Updated: Dec 6, 2022
There is a common misconception that a divorce will revoke or nullify a Will. Divorce has serious consequences on a person’s Will that are often overlooked. It is always important to update a Will where there has been a change of circumstances and that includes following a divorce.
In summary:- A divorce does not revoke a Will and it will remain valid, even if death occurs years after the divorce causing serious issues.
How Does Divorce Affect a Will?
Following a divorce, if a Will is not updated nor the situation of divorce is covered in the Will, the ex-spouse will not inherit but instead be treated as if they died on the date that the decree absolute was granted. This means that any gift made to the ex-spouse will fail. This may be what the deceased wanted, but that is not always the case and so it is important to update a Will in light of a divorce. Also, “gifts over” remain operative notwithstanding the divorce or annulment. For example, after a divorce, "a gift to my wife and if she predeceases me to X" will take effect as a valid gift to X!
Where the former spouse was due to inherit all (or a significant part) of the estate, then because of the above and without any provisions in place to circumvent these issues, nobody will inherit. This means that intestacy rules come into play and can result in the estate not passing to the people the deceased intended. This can particularly be an issue where the deceased remarried and had a new family. Dividing the estate following intestacy rules is both complicated and expensive, often resulting in an outcome that is not satisfactory to those involved and that does not honour the wishes of the deceased.
Death Before Divorce Finalised
If divorce proceedings have been initiated but not completed before one of the parties die, then the Will remains valid and the other party will inherit under the Will. This may not be what the deceased intended in light of the fact they are getting divorced and so Wills should be something that are considered at the start of proceedings.
Issues With Executors
Another implication is where a former spouse is named as executor. This appointment is automatically revoked unless it is specifically covered in the Will for them to continue after divorce. If the ex-spouse was the only executor this will cause issues since there will be no valid executor.
Does a Future Marriage Revoke a Will?
Unlike divorce, marriage automatically revokes a Will meaning that it is no longer valid. This means that when the person dies, the law of intestacy determine how the estate is divided if a new Will has not been executed. The only exception is where the Will specifically refers to the contemplation of marriage and states it will not revoke it.
Does a Clean Break Settlement Affect a Will?
Although a clean break settlement does not affect a Will from being valid (as described above) it does prevent either party from making a financial claim against the other party at any time in the future. This means that a party will be prevented from making Inheritance Act claims on the death of an ex-spouse or from contesting the Will, unless they are receiving financial support at the date of death.
Effect of Joint Ownership on a Will
Care has to be taken where assets, particularly the former matrimonial home, are owned jointly - the death of one owner means that their share automatically passes to the other. Changing the type of ownership to “tenants in common” can get around this issue and allow for provisions to be made in relevant Wills dictating who will inherit their share on their death.
For further advice on this complicated topic, please contact our friendly team by emailing email@example.com or give us a call on 26 600780.