Divorce and Your Will

There are two common beliefs about divorce and your will, and both are wrong. The first is that a divorce cancels the will you made while married. The second is that nothing at all happens until you get round to sorting it out. The truth sits between them: the will stands, your former spouse is written out of it by law, and every other clause carries on meaning exactly what it says, still built around a marriage that has ended.

Does divorce revoke a will?

No. Section 18A of the Wills Act 1837 does something much narrower. Once the marriage is legally over, your will takes effect as if your former spouse had died on that date. Two things follow from that fiction: any gift to them fails, and any appointment of them as executor or trustee falls away. The will itself remains valid, along with everything else in it. Civil partnerships are treated the same way on dissolution. The contrast with the other great life event is stark, because marriage revokes a will outright while divorce only edits one name out of it.

The timing is later than most people assume. Nothing changes when you separate, nothing changes when the application is issued, and nothing changes when the conditional order (what used to be called the decree nisi) is made. The trigger is the final order, formerly the decree absolute, the document that actually ends the marriage. Under the process introduced by the Divorce, Dissolution and Separation Act 2020 the final order has to be applied for as a separate step, weeks or months after the conditional order, and a surprising number of couples never complete it.

Separation is the dangerous phase

Until that final order, your husband or wife is still your spouse for every purpose that counts. They still inherit under your existing will. They still inherit under the intestacy rules if you have no will, taking your personal possessions, the first £322,000 and half of the rest. Inheritance tax still treats them as your spouse. A couple who separated fifteen years ago and never finished the paperwork are, to a probate registry, simply married. So the will is the first document to revisit when a marriage ends, not the last.

The hole the rule leaves

Taking one person out of a document written around them rarely leaves anything sensible behind. Consider the most ordinary wording in England and Wales: "I leave my whole estate to my wife; if she does not survive me, to my brother." After the final order, the substitute clause does what it says, and your brother inherits the lot, ahead of your children. Nobody drafted that outcome. It is just what the words mean once the first name is treated as dead.

Where there is no substitute at all, the position is messier. A failed gift of the residue passes under the intestacy rules instead, so a will and a rulebook end up dividing one estate between them: a partial intestacy, and the sort of thing that turns a straightforward administration into a long one. Executors thin out too. If your former spouse was your only named executor, somebody now has to apply to administer the estate instead, and the person the law permits to apply may not be the person you would have picked.

What a divorce does not touch at all

The will is only part of what happens on a death, and a financial order about who keeps the house does not reach any of the following:

Property held as joint tenants passes automatically to the surviving co-owner, former spouse included, unless the joint tenancy is severed; severance is a short standard step that converts it to a tenancy in common so your share follows your will
Pension death benefits and death-in-service cover are usually paid at the scheme’s discretion, guided by the nomination form you last signed, which very often still names your ex
Life policies written in trust and any other death-benefit nomination: the same problem with a different provider, and the same five-minute fix
A lasting power of attorney naming your former spouse as attorney stays live until you revoke it, which has to be done formally in writing and notified to the Office of the Public Guardian
Funeral wishes, letters of wishes and the list of who should be told: none of it is legally binding, all of it is worth rereading after a divorce

Can a former spouse still claim from your estate?

In principle, yes. A former spouse who has not remarried can apply under the Inheritance (Provision for Family and Dependants) Act 1975, and so can a child of any age. The answer to this is usually built into the divorce itself: when a court makes a financial order it can also order that neither party may apply on the other’s death, and most clean-break orders contain exactly that bar. It is worth digging out your order to check, because without the bar an estate you believed was settled can be reopened by the person you divorced.

The reverse also deserves saying, because it catches people mid-divorce. While you are still married you cannot quietly write your spouse out and expect it to hold: a spouse’s claim under the 1975 Act is judged on a generous standard, not merely what they need to get by. What a new will can do in the meantime is stop them inheriting everything by default and put your own executors back in charge.

Is a codicil enough?

Almost never. A codicil is the right tool for a small self-contained change, a new executor or a corrected name, and divorce is not that. It changes who inherits, in what shares, who acts, who looks after money for the children and often how the family home is owned, all against a will whose entire architecture assumed a marriage. Patching one clause leaves the other twenty pointing at the old life. The honest test between a codicil and a new will puts divorce firmly in new-will territory, and a new will opens by revoking everything before it, which is the cleanest possible line under a chapter.