Category: Wills & Trusts
If you made a Will during your first marriage, updated it after your divorce and then later remarried, you may assume your children are protected.
That assumption could be wrong.
Many people believe their old Will continues to operate unless they physically cancel it or sign a replacement. In England and Wales, marriage can change that position automatically. Your previous Will may no longer have any legal effect, meaning your estate could be distributed under the intestacy rules instead.
That does not always mean your children receive nothing. It does mean they may receive far less than you intended : or nothing directly at all.
If nothing changes, the risk does not sit quietly in the background. In 3 months, you may still be carrying on as normal, assuming your children are covered and that the paperwork was dealt with years ago. In 6 months, your new spouse may reasonably assume everything will pass to them because that is what most families expect. In 12 months : or whenever you die : your estate may be carved up by the intestacy rules instead, your children may receive nothing directly, and the people you love may be left arguing in the middle of grief.
That is exactly why this matters now, not later. The good news is that this is usually straightforward to fix with a review now, while you have capacity and time. You need to review your Will after divorce and make sure it properly reflects your new family, your children and your wishes.
“A will shall be revoked by the testator’s marriage.”
: Section 18, Wills Act 1837
You divorced, but your old Will did not automatically disappear
Divorce and remarriage have different effects on your Will.
When a marriage ends through divorce, your Will is not generally cancelled in full. Instead, provisions benefiting your former spouse are treated broadly as though your former spouse had died before you. This can affect:
- Gifts left to your former spouse
- The appointment of your former spouse as an Executor
- The appointment of your former spouse as a trustee
- Any powers given to your former spouse under the Will
Other parts of the Will may continue to operate. For example, a gift to your children may remain valid.
However, relying on an old Will after divorce is still risky. Your family may have changed, your assets may have changed and the people you originally appointed to manage your estate may no longer be appropriate.
The Wills Act 1837, section 18A explains the effect of divorce on gifts and appointments involving a former spouse.
Remarriage is where the serious risk often arises
If you remarry, your previous Will is normally revoked : meaning cancelled : by the marriage.
That includes a Will made during your first marriage. It also includes a Will you made after your divorce, perhaps specifically to protect your children.
There is an important exception. A Will can be made in contemplation of marriage to a particular person. This means the document must show that you expected to marry that person and intended the Will to remain valid after the marriage.
That wording must be drafted correctly. Simply writing a Will before your wedding does not automatically protect it.
If you have already remarried, the safest course is not to guess whether your old Will survived. Ask a solicitor to check your position and prepare a new Will where appropriate.
What happens if your Will has been revoked?
If your Will has been revoked by remarriage and you have not made a new one, you may die intestate.
“Intestacy” means dying without a valid Will. The intestacy rules then decide who inherits your estate. They do not necessarily follow the family arrangement you had in mind.
Where someone dies leaving a spouse and children, the surviving spouse normally receives personal belongings, a statutory legacy and part of the remaining estate. The children may share what is left, but only if the estate is large enough and after the relevant deductions and entitlements have been dealt with.
This can create a particularly difficult situation where:
- You own a house with your new spouse
- You have children from your first marriage
- You have stepchildren or children together with your new spouse
- You want your children to inherit a specific share of your estate
- You want your children to inherit your share of the family home
- You want assets to pass to your children rather than being controlled entirely by your new spouse
Under intestacy, your children may not receive the specific gifts you intended. They may not receive anything immediately. They may also have to wait until the surviving spouse dies before receiving any further benefit, and even that cannot be guaranteed because the surviving spouse may later change their own Will.
This is not about distrusting a new partner. It is about making the legal position clear and protecting everyone from uncertainty.
“My children are named in my old Will, so they are safe”
Not necessarily.
If your old Will has been revoked by remarriage, the names and instructions in it may have no legal effect. Your children being named as beneficiaries does not preserve a Will that no longer operates.
Even where your Will remains valid after divorce, you should check that it says what you now want. A child may have become an adult. Your family may include additional children. You may have acquired a property, business interest, savings or investments that were not mentioned when the original Will was drafted.
You should also consider whether the structure of your Will is suitable. A straightforward gift may not be enough where you want to:
- Protect an inheritance for children from a previous relationship
- Allow your new spouse to remain in the family home
- Ensure children eventually inherit a particular share
- Provide for children who are under 18
- Appoint suitable guardians
- Protect vulnerable beneficiaries
- Reduce the risk of future disagreements
A Will trust may be appropriate in some families, although trusts can be complex and need careful drafting. A private client solicitor can ask the right questions and explain the available options in plain English.
Your house, pension and joint accounts need checking too
A Will does not control every asset you own.
For example, property held as joint tenants will normally pass automatically to the surviving owner under survivorship rules. It does not usually pass under your Will. Property owned as tenants in common may be treated differently.
Pensions and life insurance policies may also pass according to nomination forms rather than your Will. Bank accounts held jointly can have their own rules. This means reviewing your Will without reviewing your wider estate plan may leave gaps.
You should tell your solicitor about:
- Your home and any other property
- How property is owned
- Pensions and death-in-service benefits
- Life insurance policies
- Business interests
- Savings and investments
- Assets held in trust
- Gifts or loans made to family members
- Any financial arrangements with your former or current spouse
The aim is not simply to produce a document. It is to make sure the document works alongside your assets and your family circumstances.
The simple action to take now
If you are divorced and remarried, find your most recent Will and check three things:
- When was it signed?
- Was it made before or after your remarriage?
- Does it clearly provide for your children, your current spouse and any stepfamily?
Do not amend a Will by crossing out words or writing additions in the margin. Do not destroy it without taking advice. Do not assume an online template has dealt with the legal effect of your marriage.
Instead, arrange a Will review with a solicitor. Professional will writers and solicitors can help, but you should make sure the person advising you understands blended families, remarriage, property ownership and trusts.
Our Wills & Trusts service is designed to help you understand your options and make informed decisions. We can arrange an appointment at your home, office or online, at a time that suits you.
If you are searching for will writing services, wondering how to make a will uk, or looking for a solicitor Lincoln or solicitor Crowle, we can help you put the right questions on the table.
Tyto Law has offices serving clients in Crowle, North Lincolnshire, and Lincoln, as well as surrounding areas. We provide clear advice without unnecessary legal jargon, because protecting your family should not feel confusing.
Our fixed-fee initial consultation is £175. This fee does not apply to Wills, Lasting Powers of Attorney or Probate matters.
Do not leave your children’s future to an outdated document
Divorce, remarriage and blended families can make estate planning more complicated. That does not mean you need an elaborate solution. It means you need a Will that reflects real life today.
A short review now could prevent confusion, distressing family arguments and expensive estate litigation later. It could also give you the reassurance of knowing that your children will be considered in the way you intend.
Contact Tyto Law to arrange a conversation with our team, or call:
- Lincoln: 01522 243467
- Crowle: 01724 642842
- Email: info@tytolaw.co.uk
This article concerns the law of England and Wales as understood at the date of publication. It is general information, not a substitute for advice about your own circumstances.
About the author
Oliver Saxon : Principal Solicitor
Oliver Saxon is the Principal Solicitor at Tyto Law Solicitors. He advises members of the public on Wills, trusts, Lasting Powers of Attorney, Probate and other personal legal matters.
Tyto Law offers flexible appointments at your home, office or online, including weekday, evening and weekend appointments. Oliver and the team focus on clear communication, practical solutions and helping you protect the people who matter most.