Could a Divorce or Dissolution in the Family Change the Intention of Your Will?

Anyone who has been through a divorce or the dissolution of a civil partnership will know that it can be a completely life-changing process. Formally ending a marriage or civil partnership can have hugely wide-ranging effects, from impacting your home, family and social life to your finances and future plans.

A divorce or dissolution is also likely to change what would happen to your estate in the event of your death. 

What happens to your Will after a divorce or dissolution?

There are clear rules in place that govern what happens to a Will if the person who made it later goes through a divorce or dissolution. Unlike other life events such as getting married, getting a divorce or dissolution doesn’t automatically render a Will invalid.

Instead, after a decree absolute or decree of dissolution has been granted, any mention of your former spouse or civil partner in your Will would be disregarded. Technically, they would be treated as if they had died, meaning that they would not be able to act as an executor or receive any bequests. 

In the majority of cases, this would mean that the estate of the divorced person would bypass any mention of their former spouse or civil partner and go straight to their children. However, not all cases are this straight-forward. This can also cause quite a problem if a former spouse or civil partner was the only executor who was appointed in the Will, as this would mean there was no one named to administer the estate.

Though this legal position can certainly act as a stop gap for the period soon after a divorce or dissolution, it still makes sense to update your Will as soon as possible. This will allow you to ensure you have appointed alternative executors and clarified who exactly you would like to inherit your estate.

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What if you want to mention a former spouse or civil partner in your Will?

Of course, a divorce or dissolution does not always represent a completely clear-cut separation. If you are still responsible for maintenance payments to a former spouse or civil partner, you may well need to take this into account when making your Will in order to protect your estate from a potential inheritance claim.

You may also wish to make a bequest to your former spouse or civil partner despite the separation. A former spouse or civil partner would be able to act as your executor or inherit from your estate so long as the Will was made after the divorce or dissolution was finalised.

What about other family members?

It’s important to note that only your former spouse or civil partner would be excluded from your Will after the divorce or dissolution, not any of their family members. This may be particularly important to consider if your Will was made as a ‘mirror Will’ with a former spouse or civil partner and you both named the same selection of relatives and in laws as beneficiaries and/or executors.

It may be appropriate to update your Will to remove any in laws that were mentioned, or indeed to clarify that you still wish to name them. You may also wish to explicitly name any former step-children, who may otherwise miss out on your estate once their parent has been removed from your Will.

It’s also important to consider that the separating couple themselves may not be the only individuals who need to revisit their Will after a divorce or dissolution. A divorce or dissolution having occurred will not make any part of other family members’ wills invalid. For example, if an individual named their brother or sister’s spouse as an executor in their Will, that former in law would still be entitled to act at their executor even if they were no longer married to the brother or sister.

Of course, some family members may still wish their former in laws to benefit from their estate or act as their executor. Either way, if your Will mentions an individual you are related to by marriage who has since gone through a divorce, it is wise to review your Will to ensure the wording is completely clear and fully reflects your wishes. If not, this could lead to lengthy legal proceedings after your death, such as in the recent case of Gocheva-Ash V Ash.

Gocheva-Ash V Ash, 2021

When Joyce Ash made her Will in 2009, she stated that should her son Don Ash die before her, she wished his share of her estate to go to ‘his wife, Cindy Ash.’

In 2013, Don and Cindy divorced, and in 2015 Don married Maya Gocheva-Ash. Unfortunately, Don then died unexpectedly just two years later.

After Joyce Ash died in 2019, her Will was subject to an inheritance claim by Maya Gocheva-Ash, who argued that her late husband’s share of his mother’s estate should pass to her, not Cindy Ash. Her argument was that Cindy Ash was inheriting solely on the basis of being Don’s wife which, at the time of Joyce’s death, she no longer was.

Cindy Ash’s defence was that she and Joyce had maintained a mother-daughter relationship even after the divorce, and that as she was explicitly named in the Will, it was clear that Joyce’s intention had been for the money to pass to her.

Ultimately, the court ruled in favour of Cindy Ash. Maya Gocheva-Ash was ordered to pay court fees of £50,000. This was no doubt a stressful and expensive process for everyone involved, which could have been avoided should Joyce Ash have updated her Will either after her son’s divorce in 2013 or his death in 2017.

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