Divorce proceedings and your Will

Divorce proceedings and your Will

If you have commenced divorce proceedings but not finalised them then your Will is still valid. However, your former spouse is treated as if they “died” on the day the decree absolute is granted by the Court. That means any gift in the Will falls back into the residue for the benefit of the residuary beneficiaries. However, if you had left everything to your former spouse, then the effect is as if you had died intestate and the rules of intestacy decide how your estate is distributed.

If you had appointed your former spouse as Executor or Trustee, again it is as if they have died and if they are the sole Executor or Trustee appointed this can cause problems.

If there are children under the age of 18 then it is likely you appointed each other and perhaps others to be Guardians of those children and again the divorce prevents your former spouse from being a Guardian under that old Will.  They will most likely have parental responsibility already for the children but issues can arise with step children and extended families.


It is recommended to make a new will either upon separation or immediately after your divorce, especially if your spouse or civil partner was a beneficiary or a trustee.

What happens if you don’t have a Will?

If you die without having written a will you are “intestate”. The intestacy rules state that until divorce your spouse will receive a substantial sum. The amount will depend on whether or not you have children. After divorce the main beneficiaries will be your children, but if you don’t have children your assets will pass to your parents. If your parents are already dead your siblings will inherit, then more remote relatives.

Are you concerned about these issues, we can help you explore these issues in a friendly and informal way. If you would like to make an appointment, please contact Heppenstalls Solicitors on 01425 610078 or 01590 689500.

Thank you for being so helpful at such short notice yesterday with providing the certified copy of Lasting power of Attorney - property & financial affairs for my Mother.  
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Danielle Harvey

Danielle qualified in 2011 and joined Heppenstalls in 2012 in our private client team. Danielle can advise on Will drafting, the preparation of Lasting Powers of Attorney, registration of Enduring Powers of Attorney, Court of Protection matters and estate administration.


STEP Associate member;  Full Accredited Member of Solicitors for the Elderly

To contact Danielle please call Lymington office 01590 689500 or New Milton 01425 610078.