Does Divorce Revoke a Will? What Changes on the Final Order

Part of: Divorce Specialists

Does divorce revoke a will? Only part of it, and only from the day the court makes the final order. From that date the law reads your will as if your former husband, wife or civil partner had died. Gifts to them fail and they lose any role as executor or trustee, while the rest of your will keeps working. Until then your spouse keeps every benefit the will gives them, and pensions, life policies and a jointly owned home follow their own rules. This guide covers the law in England and Wales.

If your divorce is under way, you can book a free initial consultation and one of our divorce specialists will give you initial advice on where you stand.

Does divorce revoke a will in England and Wales?

It removes your former spouse from the will and leaves the rest alone. Section 18A of the Wills Act 1837 applies when a court in England and Wales dissolves or annuls your marriage, and to a divorce or annulment from abroad that the law here recognises. From the date of the final order:

• if your will names your former spouse as executor or trustee, that appointment takes effect as if they had died on that date, so they cannot act;
• any money, property or share of your estate you left to them passes as if they had died on that date;
• any power of appointment the will gives them falls away in the same way.

Gifts to your children, friends or a charity still take effect, and anyone else you named as executor can still act. So if you are asking “does divorce invalidate a will”, the answer is no. The will stays valid without your ex in it.

Two details catch people out. First, the gift to your ex goes wherever your will sends a gift that fails, because the law treats them as dead. That may be a substitute beneficiary, or the residue of the estate. If your ex was the only residuary beneficiary and you named nobody in their place, that part of your estate may pass under the intestacy rules instead. Second, section 18A only applies “except in so far as a contrary intention appears by the will”. A will that says a gift to your spouse should survive a divorce will still pay it.

The same rules apply to civil partners when a court dissolves or annuls a civil partnership (Wills Act 1837, s.18C).

When does divorce revoke a will: conditional order or final order?

Only the final order counts. You are still married after the conditional order, and section 18A does nothing until the court makes the order final. While you are married:

• your spouse takes whatever your will leaves them and can act as your executor;
• if you have no will, the intestacy rules put your spouse first. With no children they inherit the whole estate. With children they take your personal belongings, a fixed sum and half of what remains;
• your spouse can ask the court for reasonable provision from your estate, judged by the higher standard the law sets for a spouse (Inheritance (Provision for Family and Dependants) Act 1975, s.1).

What happens to my will when I separate?

Nothing happens to it, however long you live apart. A separation agreement can divide money and property, but it does not rewrite your will. A judicial separation is not a divorce either, so it does not revoke anything in a will. Its one effect here is on intestacy: while the order is in force and you remain separated, the intestacy rules treat your spouse as if they had already died (Matrimonial Causes Act 1973, s.18(2)). Our guide to legal separation explains how that order works. For what happens when a spouse dies during a separation, see inheritance and divorce.

Does divorce revoke a will in your case? Three questions

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What sits outside your will: pensions, life cover and the family home

Your will only controls part of what you own. Some of the largest sums never pass through it, and a divorce does not revoke any of the arrangements below, so check each one.

• Pension death benefits. Many schemes ask you to name who should receive a lump sum if you die, on a nomination or expression of wishes form. The form stays exactly as it was, so update it with the scheme. Our guide to the pension sharing order covers how pensions are divided on divorce.
• Life insurance. A policy written in trust pays out to the people the trust names. If your spouse is one of them, the divorce does not remove them. Ask the insurer what the trust says and whether you can change it.
• A home owned as joint tenants. When one joint tenant dies, the other takes the whole property automatically, and your will has no say over it. You can sever the joint tenancy by giving your spouse written notice (Law of Property Act 1925, s.36(2)). Your share would then pass under your will instead. Our guide to tenants in common and joint tenants explains the difference.

Take advice before you change any of them during a divorce. A change alters what your spouse would receive while the finances are still open.

Does taking your ex out of your will stop a claim on your estate?

No. Section 18A takes your former spouse out of the will but keeps their right to ask the court for financial provision from your estate (Wills Act 1837, s.18A(2)). A former spouse or civil partner who has not remarried or formed a new civil partnership can apply, and the court looks at what they reasonably need for their maintenance (Inheritance (Provision for Family and Dependants) Act 1975, s.1). If you die within twelve months of the final order, and your ex has not applied for a financial order or their application is still undecided, the court can treat them, for that claim, as if the divorce had not been made final (s.14).

Unless your ex remarries or forms a new civil partnership, only a court order stops that claim. The family court can order that your ex may not apply against your estate, and the same kind of order can protect their estate from you (s.15). It can be made before or after the final order, but it only takes effect once the divorce is final, and a clean break in a financial consent order can include it. Our guide to the Inheritance Act 1975 explains who else can claim and how claims work.

Does divorce revoke your ex’s appointment as your children’s guardian?

Yes. If your will appoints your spouse as guardian of your children, the final order ends that appointment, unless the will shows you meant it to survive (Children Act 1989, s.6(3A)).

This matters less than it sounds when your ex is the children’s other parent. They keep their parental responsibility after your death, whatever your will says. A guardian you name in a will usually only takes up the role once no parent with parental responsibility survives, unless a child arrangements order said the children were to live with you alone (s.5(7) and (8)). Our guide to children’s arrangements after a parent dies explains what happens next.

Should you change your will before your divorce is final?

Usually, yes. You can make a new will at any time, and waiting for the divorce to revoke the old gifts leaves them in place for months. If you die before the final order, a new will stops your spouse taking the gifts and roles your old one gave them.

It has two limits. While you are married, your spouse can still ask the court for provision from your estate. A will also cannot reach pension nominations, life policies in trust or a joint tenancy. If you later marry again, the new marriage revokes your will unless you made it with that marriage in mind, as our guide to marriage and wills explains.

Our divorce specialists advise on the financial order, including whether it should bar claims against each other’s estates, which is something no will can do.

Divorce and wills: frequently asked questions

General information about the law in England and Wales, not advice on your circumstances.