Marriage, divorce and your Will: Why it matters more than you may think

Getting married or divorced is often treated as a family milestone, a financial turning point, or a fresh start. It is all of those things. But it can also have a significant effect on your Will, and sometimes in ways that people do not expect.

A Will is not something to put in a drawer and forget about. It should move with your life. Marriage, separation, divorce, children, property, blended families and changing relationships can all affect whether your wishes are properly protected.

How does getting married affect an existing Will?

In England and Wales, getting married will usually revoke an existing Will. In simple terms, this means that a Will made before the marriage may no longer be valid once the marriage has taken place.

There is an important exception. A Will can be prepared “in contemplation of marriage” to a named person. If properly drafted, that Will can remain effective after the wedding. This is one of the reasons why professional advice is helpful where marriage is expected but has not yet taken place.

If your old Will is revoked by marriage and you do not make a new one before you die, you may be treated as having died without a valid Will. Your estate would then pass under the intestacy rules rather than according to the wishes you previously recorded.

How does getting divorced affect an existing Will?

Divorce does not usually cancel the whole Will.

Once a divorce is final, your former spouse or civil partner is generally treated as having died before you for the purposes of any existing Will that was made while you were married. This can mean that any gift to them fails, and any appointment of them as an executor or trustee will no longer take effect.

That may sound straightforward, but it can create difficulties. If your former spouse was the only executor named in the Will, there may be no one named to administer the estate. If they were the main beneficiary and there is no suitable substitute clause, part or all of the estate may pass under the intestacy rules.

Separation is different. If you are separated but not yet divorced, your spouse may still benefit under your Will or under the intestacy rules. For many people, this is the point at which they most urgently need to review their Will.

Why make a Will if you are getting married or divorced?

If you do not already have a Will, marriage or divorce is a very good reason to make one for the first time.

A Will allows you to decide who should inherit from you, who should deal with your estate, and what should happen to particular assets or personal possessions. It can also be used to appoint guardians for young children and to make provision for unmarried partners, stepchildren, friends, charities or other people who would not necessarily inherit under the intestacy rules.

For those entering a second marriage, or a marriage where there are children from previous relationships, a Will is particularly important. Without one, the law may produce an outcome that does not reflect the careful balance you would have chosen between a new spouse, children, stepchildren and other family members.

After divorce, a new Will can provide certainty. It can replace an ex-spouse as executor, redirect gifts, deal with jointly owned property where appropriate, and make clear who should benefit from your estate going forward.

What happens if you die without a Will?

If you die without a valid Will, you are said to have died intestate. Your estate will be distributed according to the intestacy rules. These rules decide who inherits based on family relationships, not on personal wishes, promises, need or closeness.

In England and Wales, a surviving spouse or civil partner may inherit all or a substantial part of the estate. If there are children, the spouse or civil partner receives personal possessions, the statutory legacy, currently £322,000, and part of the remaining estate, with children sharing the rest. If there is no spouse or civil partner, the estate passes down a statutory order of relatives.

Unmarried partners do not automatically inherit under the intestacy rules, no matter how long the relationship has lasted. Stepchildren do not automatically inherit unless they have been legally adopted. Friends and charities will not benefit unless there is a valid Will naming them.

If no qualifying relatives can be found, the estate may ultimately pass to the Crown.

Where can disputes arise if there is no Will?

Dying without a Will can leave families with practical and emotional problems at an already difficult time.

Disputes can arise over who should administer the estate, particularly where several relatives have an equal right to apply. There may be arguments about personal possessions, family heirlooms, vehicles, jewellery or sentimental items that have far more emotional value than financial value.

There can also be disputes involving unmarried partners, separated spouses, children from previous relationships, stepchildren, financially dependent relatives, or people who expected to be provided for but receive little or nothing under the intestacy rules.

Where someone believes that reasonable financial provision has not been made for them, they may consider bringing a claim against the estate. Such claims can be stressful, costly and damaging to family relationships.

A Will gives clarity

A properly drafted Will cannot prevent every possible disagreement, but it can greatly reduce uncertainty. It gives your family a clear record of your wishes and gives your chosen executors the authority to deal with your estate.

If you are planning to marry, have recently married, are separating, or have divorced, it is sensible to review your Will or make one for the first time. Doing so can help protect the people you care about and avoid leaving important decisions to a fixed set of legal rules.

How Fraser Dawbarns can help

If you are getting married or divorced and would like to discuss making or updating your Will, we have teams in each of our offices who specialise in Wills, estate planning and Lasting Powers of Attorney who will be happy to help with this. Please contact our King’s Lynn, Ely, Wisbech, March or Downham Market office depending on your preferred location.

If you are in the more difficult position of disagreeing with the provisions, or lack of provisions, in the Will of someone who has died, we can also advise on the options available to you and help you with the next steps.  Our specialist solicitor in Will disputes, sometimes known as ‘contentious probate’, is Fiona Thorpe and she can be contacted by email on fionathorpe@fraserdawbarns.com or by calling any of our offices.

How To Contact Us:

To contact a member of our team, you can fill in our online enquiry form, email info@fraserdawbarns.com, or call your nearest office below. If you’d like to speak to a member of our team at one of our offices across Norfolk and Cambridgeshire, visit our offices page.

Wisbech: 01945 461456

March: 01354 602880

King’s Lynn: 01553 666600

Ely: 01353 383483

Downham Market: 01366 383171

This article aims to supply general information, but it is not intended to constitute advice. Every effort is made to ensure that the law referred to is correct at the date of publication and to avoid any statement which may mislead. However, no duty of care is assumed to any person and no liability is accepted for any omission or inaccuracy. Always seek advice specific to your own circumstances. Fraser Dawbarns LLP is always happy to provide such advice.