Marriage, Divorce and Separation

August 17, 2022

Marriage, Divorce and Separation

It is often misunderstood the effect your marital status can have on your Will, arguably sometimes it is particularly unclear. Maybe you wish to have a better grasp of where you stand and what is going to happen if you should pass away given your marital status.

This article aims to help clear up some of the lesser-known rules around Will Writing and Marital Status as the two are much more linked than you may suspect.

(A small disclaimer: all references to marriage and divorce are interchangeable with civil partnership and dissolution.)

Marriage/Civil Partnership

While we are all aware of what Marriage and Civil Partnership is, less commonly known is that marriage has a distinct effect on how you should write a Will. It is mistakenly believed that marriage has no effect on your Will and that there is no concern here.

But in fact, marriage can outright revoke your Will completely unless you take steps to ensure that this doesn’t happen. The reason this is a particularly important issue is that if you were to have children from a previous partnership and have a Will benefiting them, by marrying someone new you could be disinheriting them completely by accident.

So, if marriage automatically revokes a Will, but you don’t want this to happen to you when you do marry, then what can be done?

This is where the clause known as Contemplation of Marriage comes in, this clause is used in Will Writing where you express a contrary intention to the ‘automatic revocation’ of your Will upon getting married. Specifically, this clause is a declaration within your Will that your intended marriage to your potential future spouse shall not have the effect of revoking your Will.

Okay, but do we have to get married within a certain time limit for this to take effect?

  • The most common question we face is how long do you have before this statement becomes invalid? While there is not a concrete time period set, there is legal precedent that the marriage needs to be done within a ‘reasonable’ amount of time, the longer you leave it, the less likely the contemplation will be able to stand up to scrutiny by the court. If you leave it 30 years to marry, the courts are unlikely to look favourably upon this contemplation clause.

I have this clause in my Will, but I am with a new partner since then, is this clause still valid?

  • When it comes to the Contemplation of Marriage Clause, there is a restriction in that the Will is drafted with sole reference to the future spouse/civil partner that at the time the Will was made that you intend to be married to; this being set out in s18(4) of the Wills Act 1837.
  • If you have a new partner that you intend to marry, the clause from the first contemplation is invalid. A rewritten Will with a Contemplation Clause to the new specific person will need to be written for the clause to be valid.


Divorce/Dissolution

Just as in real life as under Succession law, divorce is never straightforward. While we have just seen how marriage can affect your Will, divorce also has its own unique effect on the Will. While it may seem logical that divorce would invalidate a Will, it interestingly only has the effect of treating your ex-spouse as if they died on the day of the divorce, as seen under Section 18a of the Wills Act 1837.

What would being divorced mean for my current Will?

  • Because of the divorce, even if your former spouse survived you, the Will treats them as if they died the day of the divorce and therefore cannot inherit from you by virtue of once being married to you. If your Will states they are to receive ‘X’ from you, they are unable to because under Succession Law they have died before you so any gift to them will pass on to the next person who is entitled.

However, unlike in marriage, there is no ‘contemplation of divorce’ clause, so something to watch out for is that until the Decree Absolute has been issued and the divorce officially completed, the other person is still for the purposes of your Will and Succession Law considered to be your spouse with all the entitlements that brings.

Okay so we know that divorcing means that the Will treats the ex-spouse as having predeceased and does not revoke the Will; what if you are separated but would still wish your spouse to benefit or act as an executor or trustee even after the divorce is finalised?

There is a clause for this in Will Writing where you express contrary intention to Section 18a of the Wills Act 1837, not too dissimilar to the contrary intention used in the marriage section.

 What does stating this contrary intention do exactly?

  • ­By stating a clear contrary intention to Section 18a you are declaring that when your Will comes into effect, the presumption of divorce treating the ex-spouse as predeceased is ignored for the purposes of your Will; that it is your specific intention that they retain the ability to act and benefit as any other individual would under your Will.
Judicial Separation

An unfamiliar area of family law when it comes to the realm of Will Writing, it is more common to have clients who are either married/civil partners, divorced/dissolved or single/cohabiting. So, what is Judicial Separation and how does it affect writing a Will?

Judicial Separation, or otherwise known as a deed of separation does not have the same effect that a divorce has under s18a of the Wills Act 1837. While it is a legal form of separation where the partners have officially separated and have proven they are not cohabiting, it has rather unique rules when it comes to affecting the estate of a client depending particularly on one of two conditions: dying with a Will or dying intestate.

Example 1: Dying with a will that still benefits the spouse you’re separated from:

  • If you are to leave a Will that still benefits the spouse you are separated from, they still retain the right to that benefit.
  • As we saw in the previous section about Divorce, until a Decree Absolute is issued the spouse is still deemed as your spouse under succession law and is not excluded from benefiting under Section 18a.
  • If you wanted them to retain their benefit while completing the divorce, this would be the time to express to contrary intention set out in the previous section.

Example 2: Dying Intestate:

  • The simpler of the two examples, while dying with a Will creates a situation where you are deemed to still be married to the estranged spouse, dying intestate has an alternative take.
  • Under the rules of Judicial Separation when dying intestate, for the purposes of intestacy the course of action is more akin to divorce. Dying without a Will while Judicially Separated will dictate for the purposes of inheritance that the estranged spouse has predeceased the intestate.
Conclusion

In review, we can see each unique and interesting way that different areas of Marriage/Civil Partnership, Divorce/Dissolution and Judicial Separation can have a remarkable effect on your Will and hopefully we have made it clear how instrumental understanding how your marital status affects your Will is.

If you are thinking of having your Will written or realised that a change needs to be made to your Will as a result of this article, please contact us on 0800 0747642 or 01206 544919.

Source SWW

Wills are not one size fits all

By Julia Newlove • October 21, 2026
Wills are not one Size Fits All: The importance of tailored Legal Advice: Every family is different and each individual’s personal circumstances, family relationships and financial position need to be carefully considered when drafting a Will. Without tailored legal advice, there is a risk that a person may make a Will that does not adequately reflect their circumstances. Drafting a Will is not simply a matter of deciding who should inherit. Careful consideration must be given to any potential complications that may arise as a direct consequence of the testator’s wishes. Some people may find that their circumstances are relatively straightforward. For others, there may be additional factors to be taken into consideration such as second marriages, children from previous relationships, unmarried partners, vulnerable beneficiaries, complex assets, future care or concerns about how an inheritance should be managed. The terms of ownership of a property can also have a significant impact on how a Will should be structured and the provisions it should contain. Without appropriate legal advice, there is a risk that a Will may not adequately reflect the wishes of the testator or even achieve their intentions. This may lead to unintended consequences, family disputes or difficulties in administering the Estate. Taking the time to obtain the right advice and carefully consider the available options can provide peace of mind and help protect both the testator’s intentions and the interests of those they leave behind. If you need tailored advice for your Will, please contact us on 01206 544919 or 07909 228072 and we will be happy to help.

Updating your current Will

By Julia Newlove • June 24, 2026
Thinking about putting a Will in place can seem daunting to some or even morbid but it doesn’t need to be. Putting provisions in place during your lifetime can give both you and your family peace of mind. If you don’t put provisions in place during your lifetime and die without making a Will, the laws of intestacy will govern how your estate will be distributed which means your estate could go to someone you would not have chosen to distribute it to. Aside from this, inheritance tax may be payable too. Before you make a Will there are things you should consider such as whether you have any specific items that you want to gift to a certain person or a group of people, or even something that is sentimental. Considering these matters early on can make it easier when discussing your wishes with a solicitor or estate planner. Here are some key things for you to think about ahead of putting a will in place:- Executor – an executor is someone who will manage and distribute your estate in accordance with the terms of your Will when you die. They will need to ensure any debts are paid and your estate and any specific gifts, distributed to those set out in your Will. You should therefore think about who you would trust to carry out this role. It’s a good idea to consider a substitute in case the initial executor either does not wish to or cannot act. Trustee – a trustee is someone who is in charge of managing and administering any assets that are held in a trust to benefit either a person or a group of people. Trustees are required to act in the best interests of the trust. You should therefore consider who would be able to carry out the role of trustee if you do have trusts in your Will following discussion with your solicitor or estate planner. Guardian – a guardian is someone you appoint in your will to look after and have parental responsibility for your children that are under the age of 18 at the date of your death. The role of a guardian entails them looking after your children and making all decisions about your children including their education, health and upbringing as the parents would. You should consider a guardian who would be able to and want to carry out this role and someone who your children already know. It would be advisable to consider appointing substitute guardians in case the chosen guardian does not wish to or cannot act. Specific gifts – are there any specific gifts you want to make to individuals on your death i.e. jewellery or particularly sentimental items? Including them in the Will makes the gift legally binding. Gifts of property – do you own any property that you wish to gift to someone in your Will? This can also include any rental properties. Businesses – do you own any businesses and what would you like to happen to them on your death? Gifts to charity – do you wish to make any gifts to charity and how much? Pets – If you own pets and were to pass away, who would you want to look after your pets? Would you like to leave a gift of money to that person that can be used to care for your pets? Exclusions – do you have any children that are estranged or any family members you do not wish to benefit from your estate on your death? Residuary estate – who do you wish to gift the rest of your estate to? If they are not living, then who else should this go to? Where you are making appointments in your Will i.e. executors, trustees and guardians, it is recommended that you speak to those people in lifetime to check they would carry out the role as if not, an alternative person can be considered. Source SWW

Reasons to update your current Will

By Julia Newlove • February 4, 2026
Making a Will is one of the most important steps anyone can take to protect their family, assets and wishes after death. Yet, despite this, millions of people in the UK still die without one. In 2026, writing a Will or reviewing an existing one, is more important than ever, particularly considering changing family structures, rising asset values, and ongoing developments in Wills and succession law. Whether you are writing your first Will or reviewing a document drafted years ago, now is the time to ensure your wishes are clear, legally effective and fit for modern life. The National Wills Report 2025 found that only 37% of UK adults currently have a valid Will, leaving nearly two-thirds of the population exposed to the consequences of intestacy. Encouragingly, 34% of adults say they plan to make a Will within the year, suggesting growing awareness, but awareness alone is not enough. 2026 is the year to move from intention to action. A Will Gives You Control Over What Happens After Death A Will is a legal document that sets out how your estate should be dealt with after your death. Without a valid Will, your estate will be distributed according to the rules of intestacy. These rules are rigid and often do not reflect modern families or personal views. Having a Will ensures that you, rather than the law, decides what happens to your money, property, and possessions. A properly drafted Will allows you to: Decide who inherits your estate. Appoint executors you trust to administer your estate. Name guardians for minor children. Leave gifts to friends, charities or causes that matter to you. Make provisions for vulnerable beneficiaries. Express funeral wishes and other final instructions. Reduce the risk of disputes or challenges. Exclude people from benefiting under your Will. Without a Will, none of these decisions, and many more, are yours to make. What Happens If You Die Without a Will? If you die without a valid Will, your estate is distributed according to the rules of intestacy. These rules are fixed in law and do not take account of personal relationships, fairness, or individual circumstances. If you die intestate: Your estate is distributed strictly according to law. Unmarried partners receive nothing, regardless of how long you have lived together. Stepchildren are excluded unless legally adopted. The people you would choose to benefit may not inherit at all. Family members may face delays, uncertainty, and additional costs. This can be especially problematic for blended families, long-term cohabiting couples, and those with complex family relationships. The Reality: Most People Still Have Not Acted The National Wills Report 2025 highlights a concerning gap between understanding and action. Only 37% of adults have a Will. 63% of adults remain without one. 29% of people with a Will haven’t told anyone where it is stored. 51% of adults do not know where their parent’s Will is kept. This means that even where a Will exists, it may be difficult or impossible to locate when needed, creating unnecessary stress for families during an already challenging time. Why Updating an Existing Will Is Just as Important Having a Will is not a one-off task. Life changes, and your Will should change with it. A Will that no longer reflects your circumstances can cause just as many problems as having no Will at all. You should review your Will if you have experienced: Changes in Relationships: Marriage or civil partnership In England and Wales, marriage automatically revokes an existing Will unless it was made in contemplation of that marriage. Divorce or separation. New relationships or remarriage. Changes in Family Circumstances: The birth of children or grandchildren. The death of a spouse, partner, beneficiary, or executor. Changes in family dynamics or responsibilities. Changes in Financial Circumstances Buying or selling a property. Significant changes to finances or business interests. Receiving an inheritance. Changes to investments or pensions. As a general rule, Wills should be reviewed every three to five years, even if no major life event has occurred. Modern Families Need Clear, Modern Planning Family structures in 2026 are increasingly complex. Cohabitation, blended families and second marriages are now common, yet intestacy rules remain firmly rooted in traditional family models. A Will is particularly important if you: Live with a partner but are not married or in a civil partnership. Have children from previous relationships. Wish to protect a spouse while ultimately benefiting children. Want to treat children and stepchildren fairly. Support someone financially who is not a close relative. Clear instructions in a Will reduce uncertainty, manage expectations, and help prevent disputes. Legal Developments and Why 2026 Matters Recent years have seen increased attention on the needs to modernise Wills law. In 2025, the Law Commission continued to progress proposals aimed at bringing Wills legislation into line with modern life. Proposals included: Reforming the rule that marriage revokes a Will. Updating the test for testamentary capacity. Allowing courts greater flexibility where formalities are not strictly followed. Exploring the future recognition of electronic Wills. While these reforms are not yet into force, they highlight a crucial point that the law is evolving, but current legal certainty still matters. A clearly drafted, professionally prepared Will remains the safest way to ensure your wishes are legally effective.  Reducing Stress, Delays and Disputes One of the greatest benefits of a clear, up-to-date Will is the reduction of stress for loved ones. When a Will is unclear, outdated or missing altogether, families may face: Disputes between beneficiaries. Claims against the estate. Lengthy probate delays. Increased legal costs. By contrast, a well-structured Will provides clarity at a tough time and helps the estate be administered efficiently. Practical Steps to Take in 2026 To protect your assets and loved ones this year, consider the following actions: Make a Will If you do not currently have one, making a Will should be a priority, particularly if you have children, own property, or live with a partner. Review Your Existing Will Check that it still reflects your wishes, assets, relationships and meets current legal requirements. Ensure Your Will Can Be Found/Located Tell your executors where your Will is being stored and consider registering its location. Additionally avoid “shadow Wills” (unofficial copies or drafts that cause confusion) that cannot be located. Think Holistically A Will should form part of a broader, working alongside tools such as Lasting Powers of Attorney (LPAs) to protect you during your lifetime as well as after death. Final Takeaway A Will is not just a document for later life, it is a practical step that protects the people and things that matter to you, whatever your age or circumstances. With millions of adults still without a Will, and many existing Wills no longer reflecting current realities, 2026 presents a clear opportunity to put plans into place with confidence. Taking the time now to write or review your Will ensures clarity, reduces uncertainty, and gives reassurance to those you leave behind. It is a small investment of time that can prevent significant difficulty in the future. Source SWW