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The unexpected effect of marriage and divorce on wills

Nov 18, 2019, 09:31 AM
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Once a Will has been put in place, there is a tendency to feel that "it is done now" and so to then forget about it. We strongly recommend, however, that clients keep their Wills under regular review, particularly if their personal and/or financial circumstances change (i.e. a new child or grandchild, a windfall, a sale/acquisition of an asset etc) or, in any event, at least every 3 to 5 years to ensure that their Wills still do what they want them to do - in light of their current circumstances and also in light of any relevant changes in the law.

Two particular occasions which can have a, sometimes unexpected, effect on Wills are marriage and divorce.

The effect of marriage on a Will

A Will can be revoked without the testator intending to do so if he or she marries or enters into a civil partnership after he or she has put in place a Will. This will leave the testator intestate unless or until the testator puts in place a new Will, meaning that the intestacy rules will dictate who is entitled to benefit from his or her estate and in what proportions, which is not always what the testator expects or, indeed, wants. The law will also determine who is entitled to deal with the testator’s estate and, again, this is not always who the testator expects or wants to deal with their estate.

It is possible to avoid the Will being revoked as a result of a marriage or civil partnership being entered in to. If the Will is prepared in 'expectation' of a marriage or civil partnership then the Will will still be valid after that marriage or civil partnership. Therefore, if marriage is contemplated, this is something which should be kept in mind when putting in place a Will and some specific wording will need to be included in the Will. If a Will is not prepared in expectation of a marriage or civil partnership then it is clearly very important that the testator puts in place a new Will as soon as possible after the marriage or civil partnership.

A Will will be read as if a spouse or civil partner has died before the testator in the event that he or she has divorced or ended a civil partnership after he or she has put in place a Will. This may lead to a partial intestacy of the testator’s assets which would otherwise be passing to that spouse or civil partner under the Will. As above, the intestacy rules may lead to unexpected or unwanted outcomes for the testator.

It is possible to avoid the Will being read as if the spouse or civil partner had died before the testator if a contrary intention is expressed in the Will. However, it is not common that a testator would wish for their ex-spouse or ex-civil partner to continue to benefit from their Will after a divorce or the ending of a civil partnership in any event. Again, it is very important that the testator puts in place a new Will as soon as possible after the divorce or ending of a civil partnership.

Marriage and divorce are not, perhaps, occasions where people automatically think about their Wills but it is important that they are reminded to do so as the consequences can be quite extreme and unexpected

If you are contemplating marriage or are recently married or, conversely, are contemplating divorce or are recently divorced do remember to update your Will.

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