If you are considering getting married or forming a civil partnership or have recently done so, it is important to review the contents of your current will, or to consider making a Will if you do not currently have one.
This article sets out to answer some of the increasing number of queries from clients around the effects of marriage, civil partnership and divorce on a will.
Introduction
Under section 18 of the Wills Act 1837, any existing will becomes automatically void when you enter into a legally binding marriage contract or civil partnership. Unless the existing Will contains an in contemplation of marriage or contemplation of civil partnership clause, any new marriage of civil partnership revokes an existing will.
Contemplation of Marriage or Civil Partnership
If the testator expects to be married or form a civil partnership to someone at the time the will was signed, it must be clear from said will that the testator does not wish the will to be revoked by the marriage or civil partnership. The clause must include the person the testator expects to marry. If they marry someone else, the will shall be invalid. It cannot be included where the testator believes they will marry this person at some point in the future.
NB: If the current will includes an in contemplation of marriage clause and the couple enter into a civil partnership, their current will shall be revoked.
How Does Re-Marriage Affect your Existing Will?
If you were previously married, have divorced and now planning to re-marry, the effect that the remarriage will have on your will is the same as if you were marrying for the first time. That is, the Will becomes void as soon as the marriage takes place.
How Divorce Affects your Will
Divorce has an impact on the terms of your will. Whilst divorce would not fully revoke your Will, your ex-spouse will be treated as if they pre deceased you, and they will no longer be able to benefit from your Will as a Beneficiary, or act as an Executor and/or Trustee.
For example, if you left a sum of money to your spouse, the
effect would be that this gift fails and the sum falls into your
residuary estate and will be distributed to your residuary
beneficiaries. If, however, you gave the entirety of your residuary
estate to your spouse with no provision of who to inherit if they
should die, then your estate will be treated as if you had died
intestate and will be administered according to the Intestacy
Rules.
When a couple commence divorce proceedings, couples usually decide
to update their Wills only once the decree absolute has been
received. Until the decree absolute is issued, you are still
"legally married" to one another, which means the spouse
can still benefit in accordance with your Will if it is not
amended. To avoid this, where a couple have commenced divorced
proceedings or even prior to this, our advice is for them to
re-write their Wills immediately.
Two Main Consequences of Not Creating a New Will When You Marry/Re-Marry
- In a situation where one of the couple has re-married, the current spouse may inherit from their estate as the main beneficiary under the Rules of Intestacy. This could inadvertently cause your children from any previous relationship to be disinherited, leaving them with little recourse.
- If you die without making a new Will, the law will treat you as having died intestate, and under the Rules of Intestacy, the law will decide who should inherit from you. In the case where you have started divorce proceedings and you pass away before the decree absolute has been granted, according to the Intestacy Rules, your spouse will be able to inherit from your estate.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
