Marriage and divorce: reviewing an existing will

Marriage, civil partnership and divorce can affect an existing will in different ways. In England and Wales, marriage or civil partnership will generally revoke a will unless a relevant exception applies, such as suitable drafting in contemplation of the particular marriage or partnership. ^[1]

Review before the ceremony

Bring the existing will to the adviser and identify the proposed spouse or civil partner. Explain children from earlier relationships and any property intended for them. Do not assume a promise between partners preserves gifts in a revoked will.

Check joint ownership and pension nominations as well as the will. They may determine how significant assets pass and can undermine an otherwise carefully considered plan.

Distinguish separation from final divorce

Separation alone does not have the same effect as divorce. After divorce, provisions benefiting or appointing a former spouse may be affected without the entire will disappearing. Ask how the actual wording and substitute gifts operate rather than assuming the estate automatically goes to the people you now prefer.

Prepare a replacement that states your current wishes clearly. Updating a will explains the documentation process; intestacy shows why leaving the position unresolved can produce a result different from your intentions. Obtain jurisdiction-specific advice where Scotland, Northern Ireland or foreign wills are involved.

Identify the legal event and its precise stage Tell the will adviser whether a ceremony is planned, a relationship has ended informally or a final divorce or dissolution order has been made. Provide dates and documents rather than describing every stage as separation. The legal effect on a will may differ substantially between those events. A pending application does not necessarily have the consequences of a final order, and a family agreement about future inheritance is not a substitute for checking the existing testamentary document.

If a ceremony is approaching, arrange the review before it where possible. The adviser needs to consider whether the existing will would be revoked and whether appropriately drafted contemplation wording is relevant to the particular marriage or civil partnership. Do not assume that naming the intended spouse somewhere in the document is sufficient. Explain whether another ceremony, a foreign marriage or uncertainty about legal recognition is involved, because the facts may require advice beyond a routine local will update.

Trace what happens if the present will ceases to govern Consider who would receive the estate if the intended gifts no longer operated. This is particularly important where there are children from earlier relationships, dependants or property intended for someone other than the new spouse. A revoked will may leave an intestacy result that differs from both partners' expectations. Discuss the outcome using the assets and family relationships that actually exist, rather than relying on a promise that a survivor will later make equivalent provision in their own will.

Where the plan involves continued occupation of a home followed by an eventual gift to children, explain that sequence carefully. It is different from leaving the home outright and expecting the recipient to preserve it. The will adviser should also know about joint ownership, pension nominations and relevant financial agreements. These may affect the assets available or benefits passing outside the will. The review needs to coordinate those arrangements without pretending that one testamentary clause controls every asset automatically.

Read the remaining provisions after final divorce In England and Wales, divorce does not generally erase the entire will. Its effect on provisions involving a former spouse, including gifts and appointments, needs to be considered alongside the wording and any relevant exception. HMRC's succession guidance describes the treatment of affected provisions, rather than a universal rule transferring everything to whichever relative is now preferred. Ask the adviser to trace the substitute gifts and residue through the actual document. [2]

Pay particular attention to appointments and gifts that depend on another person's survival. If a former spouse can no longer act as intended, a substitute executor or trustee may become important. A gift that fails may fall into another provision or leave an unresolved distribution question. Do not infer the answer from the identity of the person currently caring for you. Clear new instructions can be easier to administer than relying on a series of statutory effects applied to an outdated family plan.

Coordinate the review with the relationship's financial arrangements Tell the drafter about any continuing maintenance, property settlement or obligation relevant to the estate. A family financial order and a will perform different functions, and neither should be assumed to replace every responsibility created by the other. Explain any concern about a possible claim against the estate, particularly where a dependant may be left without intended support. The adviser needs the surrounding facts to assess the plan, rather than only the name you want removed from the document.

Once the revised will is ready, complete the required execution and update its storage information. Revisit nominations and ownership documents through their own processes, keeping confirmation of what has actually changed. Where the estate or relationship involves Scotland, Northern Ireland or another country, obtain advice for those connections rather than exporting the England and Wales result unchanged. The aim is an explicit current plan that reflects the legal relationship and the intended beneficiaries at the time it is made.