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Following on from my previous blog post about marriage automatically revoking a Will, this post will look at the effect of divorce.

By Katie Hancock, Associate Solicitor

 Did you know that divorce does not automatically revoke a Will?

 Following on from my previous blog post about marriage automatically revoking a Will, this post will look at the effect of divorce.

It is important to understand that, unlike marriage, divorce does NOT automatically revoke a Will. However, it does affect the way an ex-spouse is treated in law.

If a divorced individual dies without having updated their Will, the Will itself is still valid but the ex-spouse is treated as having already died (unless an express contrary intention is included). This means that any gift made to that ex-spouse will fail. It also means that if the ex-spouse is appointed as an executor under the terms of the Will, that appointment will likewise fail.

There is a misconception that you should wait until your divorce is finalised before you make or update a Will. However, it is advisable to update your Will, (or indeed make a Will if you have not done so already), during divorce proceedings. This is because until the divorce is finalised, (upon issue of the Decree Absolute), a spouse you have separated from will still benefit from your estate, either under the terms of your Will or by the Rules of Intestacy.

If you were to die before your divorce is finalised, it is unlikely that you would want your ex-spouse to benefit from your estate. So, it’s important to sort out your Will as soon as possible, rather than wait. It is also advisable to sever the joint tenancy of any property owned with your ex-spouse, to avoid it passing to them automatically on your death.

Of course, divorce is not always acrimonious. You may still wish for your ex-spouse to be treated as a beneficiary of your estate. In the same way that a Will can be made in contemplation of marriage, it can also be made in contemplation of divorce. Wording should be included in your Will to make it clear that you still wish for your ex-spouse to benefit, even after the Decree Absolute has been granted. This demonstrates the necessary ‘contrary intention’ required to prevent your ex-spouse being treated as having predeceased you.

We are here to help. If you would like more information about any aspect of will writing, please contact our Private Client team on tel: 01892 515022

This blog is not intended as legal advice that can be relied upon and CooperBurnett does not accept any responsibility for the accuracy of its contents.

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July 15, 2021
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