Divorce and Remarriage

Major changes in personal circumstances, such as getting married, remarried, or getting divorced, fundamentally alter the legal standing of your estate planning [1, 2]. Failing to update a Will during these transitions is a common mistake that can lead to unintended beneficiaries or expensive legal disputes [3, 4].

The Impact of Divorce

When a couple divorces or a marriage is annulled, the existing Will is not entirely revoked, but it is read as though the former spouse had predeceased the Testator [5, 6].

• Ignored Provisions: All references to the former spouse regarding appointments (such as acting as an Executor or Trustee) and any specific gifts or benefits are automatically ignored [5, 6].
• The Risk of Intestacy: If the Will does not account for a spouse “predeceasing” the Testator by naming alternative executors or providing “gift-overs,” the estate may fall into a partial or total intestacy [5, 7].
• Separation: It is important to note that separation alone does not revoke a Will [1]. If you have separated and your ex-partner now lives with someone else, you must manually change your Will to ensure they do not still inherit [1].

The Impact of Remarriage

In England and Wales, the act of marriage or entering into a registered civil partnership automatically revokes any previous Will you have made [1, 8].

• Total Invalidity: Unless the Will was specifically drafted to account for the new union, you are essentially left without a valid Will the moment you marry, and the Rules of Intestacy will decide who gets what [1, 9].
• Wills in Contemplation of Marriage: To prevent a Will from being revoked by an upcoming wedding, it must be made “in contemplation of marriage” to a specific, named person [5, 10, 11]. These Wills often include caveats stating what should happen if the ceremony does not take place within a set timeframe [11, 12].

Protecting the “Bloodline”

Second and subsequent marriages bring complex family dynamics, particularly regarding step-children. Many Testators have a strong desire to keep their assets in the “bloodline” to ensure their natural children inherit rather than a new partner’s family [13, 14].

• The “All to Spouse” Trap: If a Testator leaves their entire estate to a second spouse absolutely, that spouse could “blow the lot,” leaving the Testator’s children with nothing [15, 16].
• Succession Concerns: There is a high risk that if a surviving spouse remarries, their new partner and that partner’s children could eventually take the entire estate [15].
• Life Interests: A common solution is giving the surviving spouse a Life Interest in assets (like the family home), allowing them to live there for life while guaranteeing the property eventually passes to the Testator’s children [14, 17].

Professional Recommendations

Because of these risks, a second marriage should often be regarded as a business arrangement as much as a personal one [14]. It is essential to:

1. Review your Will every three years or whenever a change in relationship occurs [18, 19].
2. Explicitly revoke all previous Wills and Codicils when drafting a new document to ensure it is the only legally valid version [20, 21].
3. Appoint alternative Executors to manage the estate should a divorce render your primary choice invalid [5].