Should I Wait Until My Divorce is Final Before Making a New Will?


When you are going through the upsetting and difficult time of separation or divorce it is understandable that making a new will or updating your current one may not be on the top of your to-do list. But it is something you need to do to ensure that your former husband or wife does not unintentionally benefit from your estate if you die.

Amye Aris, our wills and probate solicitor explains the importance of keeping your will up-to-date and talks through different scenarios with regard to the rules on wills, separation and divorce.

Below are a few questions we are often asked and our replies.

What if I die before my divorce is final and I have no will in place?

If you die without a will the Government’s Rules of Intestacy determine who should receive your estate. These Rules specify an order of priority in terms of inheritance.

If you are married without children your spouse will receive everything, regardless of whether you have been separated for a number of years or not.

If you are married with children your spouse receives the first £270,000 from your estate, all of your personal belongings and half of the remaining value.

It is important to consider that the Rules state that your spouse is entitled to the above even if you have commenced divorce proceedings and had every intention to divorce. Until you receive Decree Absolute you are still legally married.


What happens if I had a will prior to divorcing but do nothing about updating it?

The terms of your will remain valid and effective whilst you are going through the process of divorce or separation. You may not wish this to be the case as your ex may be the last person whom you wish to inherit your estate. Without changing your will this is what would take effect on your death.

Once the Decree Absolute is granted it will not revoke your will in its entirety, but your former spouse is treated as it they had died on the day your marriage or civil partnership was dissolved.

This can have a serious effect on your estate and your will may fail completely if everything is left to your former spouse without alternative provisions. In that case the Rules of Intestacy will apply. This could mean that any new partner is totally left out of your estate and estranged family members could benefit from it  – which was never your intention.

Why should I make a new will?

Making a new will if you have considered a divorce ensures that:

  • You chose who benefits from your estate;
  • Your estate is divided the way you wanted;
  • Any new Partner can be included;
  • Your children are protected by way of trusts set up in the will to ring fence assets

Lots of clients who see us about initiating a divorce have given consideration about who should live in the family home, their future finances, who the children will live with and even who gets the family pets, but have not thought about making or updating their will.

Speak to us today on 01908 542 677 to start the process of making a new Will and ensuring that you have everything in place should the worst ever happen.