A divorce or separation rearranges almost everything: your home, your finances, your day-to-day life with your children. It also rearranges your will - sometimes in ways the law does automatically, and sometimes in ways only you can sort out.
If you've gone through a divorce or separation and never updated your will, this article is for you. It covers what happens to an existing will, what intestacy looks like for a divorced or separated person, and the changes most people need to make.
What happens to your existing will on divorce
In England and Wales, the absolute decree of divorce has a specific legal effect on your existing will. Under the Wills Act 1837 (as amended), your former spouse is treated as if they had died on the date the divorce was finalised - for the purposes of your will.
In practice that means:
- Any gift to your former spouse in the will fails. The gift falls into the residue of your estate, or to a substitute beneficiary if you named one.
- Any appointment of your former spouse as executor or trustee fails. Your substitute (or the next person in line) takes over.
- The rest of the will continues in force.
This is helpful, but it's not a substitute for updating the will. Three problems persist.
1. Cascade gaps
If you left "everything to my spouse, otherwise to the residuary beneficiaries", you may now have a residuary structure that wasn't designed to be the main route. It might be vague ("to my children equally") or include people you no longer want as primary beneficiaries.
2. Executor gaps
If the will appointed your spouse as sole executor and didn't name a substitute, you're now relying on your beneficiaries (most often the children) to take on the role. They may not be the people you'd choose.
3. Pre-divorce drafting
The will was written for the family you had then. The mortgage was joint, the children were younger, the assets were structured differently. Even if the broad shape is still right, the details are usually wrong.
For all three reasons, a fresh will after divorce is worth the half-hour it takes.
(If this is the prompt you needed, start your will online - it takes 15-30 minutes.)
What happens during separation but before divorce?
This is where it gets uncomfortable. Separation is not divorce, legally speaking. Until the divorce is finalised, your separated spouse is still your spouse:
- They are still your spouse for intestacy purposes. If you die without a will during the separation, they inherit substantially.
- They are still entitled under your will if it leaves them anything.
- They are still your spouse for pension and life-insurance nominations unless you've changed those.
Most separating couples don't intend to leave each other their estate. The fix is to update the will (and the nominations, and the pension forms) as soon as the relationship ends - long before the divorce paperwork is complete.
This is also when inheritance tax planning can shift suddenly. Spouse-to-spouse gifts are exempt from IHT; transfers to a separated-but-not-yet-divorced spouse are still exempt; transfers to an ex-spouse after divorce are not. If you're planning major lifetime gifts during the separation, the timing matters.
The most common changes after divorce
Once the divorce is final, most people need to update some combination of:
- Beneficiaries. Replace gifts to your former spouse. Update residuary structures.
- Executors and trustees. Appoint new ones. Don't leave it dangling.
- Guardians. If you have children under 18 and were relying on guardians as a "double-tragedy" backup, revisit who that should be now.
- Property treatment. If the family home is being sold or transferred, the property clauses in your will need to match the new arrangements.
- Life-insurance nominations. Update with the provider directly - your will doesn't override these.
- Pension nominations. Same - update with the scheme.
- Lasting Power of Attorney. Often the same person was named in both your will and your LPA. Both need separate updates.
A good guided will builder walks you through all of these systematically. Our will mistakes guide covers the technical pitfalls when redrafting.
What if you remarry?
This is the single most important rule and it surprises a lot of people: marriage revokes any existing will unless the will was specifically made "in expectation of" that marriage.
So if you write a careful post-divorce will leaving everything to your children, and then remarry without writing a new will, the new marriage automatically cancels the post-divorce will. You die intestate. The new spouse inherits substantially under the intestacy rules. The children's protection you'd put in place evaporates.
We have a separate guide on planning your will when you remarry - the short version is: write a new will before or shortly after the wedding, and consider whether a "made in expectation of" clause is right for the will you write before.
What if you never remarry but live with a new partner?
A cohabiting partner has no automatic intestacy entitlement. If you live with someone after divorce and never marry, and you die without a will, your partner inherits nothing - regardless of how long you've been together.
This is the situation where a clear, current will matters most. Without one, your partner may be left in legal conflict with your children or your ex. With one, the picture is straightforward.
> Ready to update your will? Trusted Hands turns these decisions into a 15-30 minute guided builder. Start free → - only pay when you download.
What about pension and life-insurance nominations?
These aren't governed by your will. They pay out to whoever you nominated on the form held with the provider or scheme.
A staggering number of people forget to update them after divorce. The result is a six-figure life-insurance lump sum or pension death benefit being paid to an ex-spouse you'd long since stopped speaking to.
Half an hour with the relevant provider websites and forms fixes it. Add it to your divorce paperwork checklist.
Inheritance tax and the divorced estate
Divorce changes the IHT picture in a few ways:
- You lose the spouse exemption on gifts to (now-ex) spouse.
- You may lose the transferable nil-rate band if your spouse predeceased you and you've now divorced their estate (rare but it happens).
- Your single-person estate has a nil-rate band of £325,000 plus a residence nil-rate band of £175,000 if you leave the home to direct descendants - both frozen until April 2030. Total: £500,000 single, £1 million couple.
- If you've inherited from a former spouse and remarried, the picture gets complex.
For complex estates, we recommend you seek assistance from a Trusted Hands Advisor or your own legal advice. Our inheritance tax guide covers the structures.
What about your children's guardians?
If you have children under 18 and were appointing the other parent as their primary carer in your will, that appointment may need rethinking now. The other parent retains parental responsibility regardless, but if both of you die and you'd previously assumed the children would go to your ex's family, you may want a fresh appointment.
Our guide on appointing guardians covers the practical conversations.
> Ready to start your will? Trusted Hands turns these decisions into a 15-30 minute guided builder. Start free → — only pay when you download.
Frequently asked questions
Do I need a new will or just an update?
A short codicil can work for a small change. After a divorce, the changes are usually substantial enough that a fresh will is cleaner and easier to follow. Most online builders re-issue the whole document anyway.
Is my old will still valid after the divorce?
Yes - but with your former spouse treated as if they had died. The rest stands. If the result is sensible, it'll do; if not, redraft.
I'm separated but not divorced. Can I cut my spouse out of my will?
Yes. You can write a new will any time, leaving your estate to anyone you choose. Be aware that a separated-but-not-divorced spouse can still bring a 1975 Act claim for "reasonable provision", especially if they were financially dependent. A well-drafted will with explicit reasoning can help defend against that.
Does my pension automatically pay to my ex after divorce?
Only if your nomination still names them. Update the nomination with the scheme. Pension trustees usually have discretion and may follow recent nominations regardless, but a clean post-divorce nomination removes the doubt.
What if I write a new will and then remarry?
Marriage revokes the will unless the will was made in expectation of the specific marriage. Write a new one before or shortly after the wedding. See our remarrying guide.
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