Whether or not you have a Will in place it is important to know who inherits from your estate in the event you go through a divorce.

When you get married, any Will you already had in place is automatically revoked (unless the will specifically states otherwise). This means that if you had a Will before you were married, that will is no longer valid.

What happens to my will on divorce?

If you created a Will after you were married, unless there is evidence of contrary intention in the Will, the granting of a Final Order (decree absolute) of divorce or nullity will have the following effects on the Will of either spouse:

1. If your former spouse is named as the executor or trustee in the Will this is ignored.
2. The former spouse is treated as having died at the date of divorce, so any gift to the former spouse fails and becomes part of the residue of your estate or passes according to the intestacy provisions.

Essentially, your ex-spouse will not receive anything under your Will and anything that was going to be left to them forms part of the residue of your estate.

Right of survivorship on divorce

However, divorce has no effect on the right of survivorship. This means that any property which, at the time of death, the deceased still holds as a joint tenant with their former partner will pass automatically to their former spouse by survivorship despite the termination of the marriage.

I am currently getting divorced, should I make a new will?

We always advise our clients to make a new Will when they are getting divorced. This is because until you receive the Final Order (previously decree absolute), in the eyes of the law you are still married.

This means that if you have a Will leaving everything to your spouse, even though you have started the divorce process, everything will still go to them.

If you don’t have a Will, under the rules of intestacy your spouse will receive a proportion if not all of your estate. Commencing divorce proceedings does not change this. It is only when the divorce is finalised by the Final Order that the law will recognise you are no longer married, and then your ex-spouse will not inherit your assets.

Contact us

For further information, please contact Aimee Stokes, a Family Law Solicitor based in our Wolverhampton Office on 01902 328 355.

George Green have offices based in Wolverhampton and Cradley Heath and serve clients across the West Midlands and Black Country including Stourbridge, Wolverhampton, Halesowen, Birmingham and beyond. If you complete our online enquiry form, a member of our team will contact you for an initial discussion.