The effects of marriage and divorce on Wills

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Article

23 March, 2021

There is often some confusion about what happens to an existing Will in the event of a marriage/civil partnership or a divorce. Some people have made a Will before getting married, or whilst they are married and do not consider the effect that their subsequent marriage or divorce will have on the Will.

If you are due to get married, or if you are in the process of going through a marriage or civil partnership breakdown, it is worth giving some thought to the arrangements you have made in the event of your death.

The effect of marriage on a Will

Pre-existing Wills

When you get married or enter a civil partnership, any Will that you made prior to your marriage will automatically be revoked. This means that you will be intestate and your estate will be distributed in accordance with the laws of intestacy. You will therefore have no control over what happens to your assets after you die.

It is particularly important to consider this where you are embarking upon a second marriage or civil partnership. You may have children from a previous relationship who you would like to benefit from your estate. Depending on the value of your assets, this may not happen if you do not have a valid Will when you die.

Wills "in contemplation of marriage"

In order to pre-empt the situation above, however, you can include a special clause in your Will before marriage, specifically stating that the Will is not to be revoked if your impending marriage to your intended named spouse takes place. In this case, the 'pre-marriage Will' is not revoked when the subsequent marriage to that named spouse happens. This can be referred to as a Will made 'in contemplation' of marriage or civil partnership.

Making a Will is not usually at the top of the list of priorities when planning a wedding. It is not an inherently romantic thought! It is worth, however, giving some thought to ensuring that your Will is in order before the big day so that you can get married and embark on your honeymoon without having to worry about it afterwards.

The effect of divorce on a Will

In England and Wales, when a couple's divorce is finalised (i.e. a decree absolute has been granted) an existing Will made before the divorce is not automatically revoked.

What it does mean, however, is that the law treats the ex-spouse as having died before the testator which effectively means that any gift to them under the Will or any appointment of the ex-spouse as executor will fail. If the Will provides for secondary beneficiaries in these circumstances then they will benefit from your estate instead.

Many people wish to exclude their ex-spouses from their Wills altogether, but some would actually prefer to include them as executors or trustees, particularly where they have children together.

It is important to bear in mind, that until the decree absolute has been granted, you are still legally married and therefore the terms of the Will still stand. When a marriage or civil partnership has broken down, therefore, it is important to take advice in relation to your Will to ensure that your wishes are made clear.

What if I don't have a Will at all?

If you die without having made a Will, your estate will be dealt with in accordance with the laws of intestacy. This means that the person or people who are entitled to deal with your estate, and the people who are entitled to benefit from it, are set out in law. You do not have any control over this.

This can be problematic, particularly in the following scenarios:

  1. If you are in the process of going through a marriage breakdown but the divorce has not been finalised. Until the decree absolute is granted, your spouse or civil partner has the legal right to deal with your estate after you have died, and, depending on the value of your assets, will have the right to receive a significant share, if not all, of your estate. It is very important, therefore, to look into making a Will as soon as possible after a marriage breakdown to ensure that your estate is dealt with in accordance with your wishes.
  2. If you are married with children from a previous relationship that you would like to benefit from your estate. Without a Will, your spouse or civil partner will have the right to deal with your estate and, depending on the value, receive all or the majority of your assets. If you would like your children to receive a share of your estate when you die, you will need to make a Will to ensure that this happens.

If you would like some advice in relation to your Will either in contemplation of a forthcoming marriage, after a recent marriage, or in the event of a relationship breakdown, please contact Elizabeth Whitaker on 01772 220022 or Elizabeth Whitaker or alternatively complete our online enquiry form.

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