A will is a vital legal document that determines how a person’s assets are distributed after their death. Many people assume that once they have written a will, their estate will be handled exactly as they intended. However, life events such as marriage and divorce can significantly impact the validity and terms of a will. Under UK law, marriage automatically revokes an existing will unless specific provisions are made, while divorce does not revoke a will but alters its legal effects. Failing to update a will after these significant life events can lead to unintended consequences, including assets passing under intestacy laws or ex-spouses inheriting despite a separation.
This article explores in detail how marriage and divorce affect a person’s will, the implications of intestacy rules, and the steps individuals should take to ensure their estate is distributed according to their wishes.
How Marriage Affects a Will?
Automatic Revocation of a Will Upon Marriage
In the UK, marriage automatically revokes any existing will unless the will includes a specific clause stating it remains valid after marriage. This legal principle ensures that when a person enters into a marriage or civil partnership, their estate planning is re-evaluated to reflect their new relationship status.
For individuals who marry without updating their will, this means that their estate will be distributed under the rules of intestacy if they pass away. This can be particularly problematic if they have children from a previous relationship or intended for specific beneficiaries to inherit.
Intestacy Rules in the Absence of a New Will
If a person dies without making a new will after marriage, their estate will be distributed under intestacy laws. Under these rules, the surviving spouse inherits:
- All personal belongings of the deceased.
- The first £270,000 of the estate.
- Half of the remaining estate (if there are surviving children, grandchildren, or great-grandchildren).
The remainder of the estate is then distributed among the deceased’s children or other heirs. This distribution may not align with the deceased’s wishes, particularly in cases of second marriages where children from a previous relationship are involved.
Making a Will in Contemplation of Marriage
A will can remain valid after marriage if it includes a specific clause stating that it was made “in contemplation of marriage” to a named person. This means that the testator (the person making the will) acknowledges their upcoming marriage and wishes for the will to remain valid despite this change in legal status.
For example, if an individual is engaged and wishes for their assets to be distributed according to their will after marriage, they must explicitly state their intention in the document. Otherwise, the marriage will automatically revoke it.
Foreign Wills and Marriage
For individuals with assets in different countries, the laws regarding how marriage affects wills vary. A will drafted in one country may not automatically be revoked by marriage in another jurisdiction. Therefore, it is advisable for individuals with international assets to seek legal advice to ensure their estate planning is valid across all relevant jurisdictions.
How Divorce Affects a Will?
Unlike marriage, divorce does not automatically revoke a will in the UK. Instead, it alters the legal standing of the ex-spouse within the will.
The Effect of Divorce on an Existing Will
Once a decree absolute is issued, an ex-spouse is treated as if they had died before the testator. This has the following effects:
- Any gifts left to the ex-spouse in the will automatically fail.
- If the ex-spouse was named as an executor or trustee, that appointment is automatically revoked.
- The rest of the will remains valid and is executed as if the ex-spouse were no longer alive.
If a will does not name alternative beneficiaries or executors, the estate may be partially intestate, leading to unintended consequences and potential disputes among remaining heirs.
The Importance of Updating a Will Post-Divorce
Many people assume that because their ex-spouse is automatically removed from their will upon divorce, there is no need to update it. However, failing to review the will could mean that assets are distributed in ways they did not intend. For example:
- If the ex-spouse was the sole or primary beneficiary, the estate could fall into intestacy laws, distributing assets to family members who were never intended to inherit.
- If no alternative executor is named, the court may need to appoint an administrator, which can complicate the probate process.
To avoid these complications, it is strongly advised to make a new will immediately after divorce.
Effect of Divorce on Beneficiaries’ Spouses
If a beneficiary’s spouse (other than the testator’s) is named in the will and they later divorce, this does not affect their inheritance rights. They will still inherit as outlined in the will unless the testator makes changes.
Pensions, Life Insurance, and Death-in-Service Benefits
Many individuals assume that pensions, life insurance policies, and death-in-service benefits are covered by their will, but this is not always the case. These financial products typically allow the policyholder to nominate a beneficiary directly, and these nominations take precedence over a will.
Does Marriage or Divorce Affect These Nominations?
- Marriage does not automatically change nominated beneficiaries on these financial products. If an individual remarries but does not update their nominated beneficiaries, their pension or life insurance payout could still go to a former partner or an unintended person.
- Divorce does not revoke nominations either. If an ex-spouse remains the named beneficiary, they could still inherit these benefits unless the nomination is updated.
It is crucial for individuals to regularly review and update beneficiary nominations on financial policies after marriage or divorce to ensure assets are distributed as intended.
Practical Steps to Take After Marriage or Divorce
Given the significant impact that marriage and divorce have on a will, individuals should take the following steps to ensure their estate planning reflects their wishes:
- Review and Update Your Will: After marriage, ensure your will includes your spouse and children if desired. After divorce, make a new will to remove the ex-spouse and name alternative executors and beneficiaries.
- Check Your Pension, Life Insurance, and Death-in-Service Beneficiaries: Update nominated beneficiaries if necessary to reflect current relationships.
- Consider Setting Up a Trust: If you have children from a previous relationship, a trust can help ensure they receive part of your estate while also providing for a new spouse.
- Seek Legal Advice: Consult a solicitor to ensure your will is legally sound and aligns with your financial and family situation.
- Review Your Estate Plan Every 5 Years: Even without marriage or divorce, it is wise to reassess your will periodically to ensure it reflects your current wishes and circumstances.
Conclusion
Marriage and divorce both have profound effects on a person’s will. While marriage automatically revokes a will, divorce does not, but it does remove an ex-spouse from benefiting under it. Failing to update a will after these life events can lead to intestacy, disputes, or unintended inheritances. Additionally, pension and insurance beneficiaries should be reviewed to ensure they align with the testator’s intentions.
To protect one’s estate and ensure assets are distributed as desired, it is essential to regularly review and update a will, particularly after significant life changes. Seeking professional legal advice can help navigate these complexities and avoid potential issues for loved ones in the future.
