Will - Marriage and divorce

Your Will - Trustees

Marriage and divorce

Introduction

This article is one of a set about wills. While some of the information pages explain various pieces of legislation which are relevant to making a will, others explain a particular aspect of will writing that you might like to consider.

This article explains hw marriage and divorce affects your will.

Effect of marriage on your will

When you marry, any existing will is automatically revoked.  That means it is no longer valid.  However, you can make a will expressed to be “in anticipation of marriage”.  If it is quite clear that you intend it to take effect after you have married, then it will be valid after you have married.  You can make it take effect either only after you have married, or immediately. You may need expert help in drafting to make this clear.

Effect of divorce on your will

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 / 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 / her, then the effect is as if you had died intestate. Of course, it is best to make a new will immediately after your divorce.

Similarly, if by your will you had appointed your spouse as an executor or trustee, the will still takes effect as if he / she had died on the date the decree became absolute.

Even if you had appointed him / 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.

You can avoid these results by making it quite clear in your will that you so intend.  So you do not have to await the decree absolute.  You can make a new will at any time.

If by chance you find some error of law or fact in any Net Lawman information page, do please tell us. We should also welcome your suggestions for new subjects for information pages. These notes:

• do not provide a complete or authoritative statement of the law.
• do not constitute legal advice by Net Lawman.
• do not create a contractual relationship.
• do not form part of any other advice, whether paid or free.

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56. Your will - Trustees
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