If you don’t update your Will during divorce – or you have not made one – your estranged spouse may still inherit your estate in the event of your death.

Why updating your Will matters during divorce

Until you are legally divorced, the law treats couples as still being married, even when they have separated or filed for divorce. This means that any current Will remains valid until you change it or the Final Divorce Order has been granted. This could mean your spouse – or soon to be ex-spouse – automatically receives all or a substantial part of your assets.

Making a new Will during divorce

Creating or updating your Will, puts you in control of who you would like to benefit from your estate and enables you to make appropriate provisions for any children you have. If you wish, you can still include your ex-spouse. The point is that you retain control of your assets and can guide your family’s financial destiny.

Even if the financial side of your divorce isn’t settled yet, it’s still important to make a new Will. You can always update it later once your financial arrangements are finalised.

Can my spouse challenge a new Will?

Yes – if you pass away before your divorce is final, your spouse can challenge any new Will that you have made which excludes them.

In cases like that, the courts will look to see not only if reasonable financial provision has been made for the spouse, but also what the position would have been if the divorce had been fully concluded.

What happens if I don’t update my Will?

If you do have a Will, once you are divorced any gift in it to your spouse, or appointment of your spouse as executor of your Will, will be treated as if your spouse has died before you. For example, a gift in your Will to your ex-spouse will fall away.

You should note that even after you are legally divorced, your ex-spouse may have a right to claim against your estate. It is therefore imperative that on divorce, you conclude all your financial claims with a Final Order or Consent Order that specifically prevents either party from making a claim against the other’s estate, save in limited circumstances. This will give you security that your updated Will shall be free from challenge by your ex after the divorce.

Don’t forget to review your pension and beneficiaries

We would also recommend that you contact your pension provider(s) and update your list of nominated beneficiaries. Similarly, check any life insurance policies or death-in-service benefits.

Separating from your partner can be incredibly stressful. However, taking precautions like updating your Will can bring you a little peace of mind, knowing you have protected your dependents and your family’s financial position.

How TWM can help you

At TWM, our expert Private Client team works closely with our Family Law specialists to help you protect your assets during and after divorce. We’ll explain your options clearly and objectively and guide you through the process from start to finish.