The effect of marriage and divorce on your will
This article is one in a series about writing a will.
The series combines explanations of legislation with practical considerations. We hope these articles are both thorough and easy to digest.
This article explains how marriage or divorce affects your will.
When you marry, any existing will is automatically revoked (cancelled) and becomes no longer valid.
If you do not make a new one, then when you die the law of intestacy decides how your assets are divided. Usually, your entire estate would go to your wife, husband or civil partner.
This may not be what you want for a number of reasons. So we suggest that you either make a will as soon as you marry, or beforehand - in anticipation.
If it is quite clear that you intend your new will to take effect after you have married, then it will be valid once you are. To make it clear, you need to include the words 'in anticipation of marriage to [name]' or alternatively 'in contemplation of marriage to [name]'.
Mirror wills are a romantic, but impractical gesture.
Mirror wills are written by husband and wife, and the wishes of each 'mirror' those of the other.
For example, both might agree with each other to give 70% of their personal estate to the other, and the remainder to their children. Each person's will reflects that agreement.
The problem with mirror wills is that although the wills themselves are legally binding, there is no legally binding contract between the husband and wife.
Everyone is free to decide how their estate is gifted, and there is nothing to stop someone from revoking a mirrored will without his or her spouse knowing, or changing the will at a later date (for example on remarriage after the death of the spouse).
One party revoking a mirrored will does not change the legality of the other mirrored will.
There are many cases of a widow or widower revoking a mirrored will and drawing a new will that changes the beneficiaries completely. If you really want to make sure your niece inherits your family stamp collection, the answer is to gift it to her in your own will, not rely on your spouse to do so.
If your marriage is ended by a court order (like divorce or annulment) your will is not void or invalid.
What happens is that any gift to your former spouse takes effect as if he or she had died on the date your decree became absolute.
That usually means the gift falls back into residue for the benefit of the residuary beneficiaries. Of course, if you had left everything to him or her, then the effect is as if you had died intestate and the rules of intestacy once again decide how your estate is distributed.
Similarly, if by your will you had appointed your spouse as an executor or trustee, the will still takes effect as if he or she had died on the date the decree became absolute.
Even if you had appointed him or her as trustee of a trust for the benefit of the children of both of you, or as a guardian of a child or children, the trust fails. That might not be what you want - although you are divorced, you may still like your ex-husband or ex-wife to be responsible for any children's trust fund.
So it is best to make a new will immediately after your divorce, especially if your spouse or civil partner was a beneficiary or a trustee.
However, because your will does not become invalid at divorce, you can make a new will at any time after separation but before divorce so that these issues do not occur. You do not have to await the decree absolute.
We recommend that you read about ensuring your money and assets stay in your family next.
We strongly believe that every adult should make a will. So we provide some of our more straightforward wills (likely to be suitable for most people) absolutely free with no catches or conditions.
Visit our library and choose the most suitable from the list of last will and testament templates. We offer nine templates in total that together cover thousands of possible variations of wishes. There will be one to suit your situation. If you are in doubt as to which to choose, this article will help you to decide exactly which suits you best.
Please note that the information provided on this page:
- Does not provide a complete or authoritative statement of the law;
- Does not constitute legal advice by Net Lawman;
- Does not create a contractual relationship;
- Does not form part of any other advice, whether paid or free.
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