GUIDE • DIVORCE & SEPARATION
Your will
Reviewing your will is rarely the first thing on anyone's mind when a marriage ends. However, separation and divorce can have a significant effect on who inherits your estate, and the law does not always produce the result people expect. This guide explains how divorce affects an existing will, the position if you die before the divorce is finalised, and the steps worth taking along the way.
Written by Nicola Jones - Partner, Divorce and Family - Last reviewed 13th October 2026
KEY POINTS
- Separation alone has no effect on your will.
- Once the final order is made, your former spouse is treated as having died for the purposes of your will.
- If you die before the final order without a will, your spouse may inherit most or all of your estate.
- A former spouse may still be able to bring a claim against your estate unless a court order prevents it.
- Pension nominations and life insurance are not covered by your will and should be reviewed separately.
Does separation affect my will?
No. Until the court makes a final order, you remain legally married, and your will continues to apply exactly as written. If it leaves your estate to your spouse or appoints them as executor, that will still take effect if you die during the separation. For this reason, it is sensible to review your will as soon as you separate rather than waiting for the divorce to conclude.
What happens to my will once the divorce is final?
Divorce does not cancel a will. Instead, under section 18A of the Wills Act 1837, your former spouse is treated as having died on the date the marriage is dissolved. Any gift to them fails, and any appointment of them as executor or trustee falls away, unless the will clearly states otherwise. The rest of the will stays in force.
This can leave gaps. If your former spouse was the main beneficiary and there is no substitute gift, part or all of your estate may pass under the intestacy rules instead. If they were your only executor, someone else will need to step in.
What happens if I die before the divorce is finalised?
If you have no will, the intestacy rules apply, and your spouse is still treated as your spouse, however long you have been separated. Where there are children, a spouse receives your personal possessions, the first £322,000 of the estate and half of the remainder. Where there are no children, they inherit everything.
If you're considering or going through a divorce, speak to one of our family solicitors about protecting your position.
Can my former spouse still make a claim against my estate?
Possibly. Under the Inheritance (Provision for Family and Dependants) Act 1975, a former spouse who has not remarried can apply to court for reasonable financial provision from your estate. To prevent this, a financial order on divorce will usually include a clause barring such claims. This is one reason why a court-approved financial settlement matters, even where you and your former spouse have agreed everything informally.
What else should I review besides my will?
Several important assets pass outside your will and are not affected by section 18A. It is worth checking:
• Pension nominations: Most schemes ask you to name who should receive death benefits, and that nomination stays in place until you change it.
• Life insurance: Policies, including those written in trust, may still name your spouse as beneficiary.
• Jointly owned property: A home held as joint tenants passes automatically to the surviving owner. Severing the joint tenancy means your share passes under your will instead.
• Lasting powers of attorney: An appointment of your spouse as attorney is generally revoked by divorce, but it is sensible to put new arrangements in place.
When should I make a new will?
Ideally, as soon as you separate, with a further review once the financial settlement is in place. Your new will can reflect your intentions during the divorce, and then be updated to account for the final division of assets. If you remarry in future, bear in mind that marriage automatically revokes an existing will unless it was made in contemplation of that marriage.
Common questions
Usually not, because the divorce itself is dealt with on paper and most financial and children matters are settled without a contested hearing. Mediation, collaborative law, arbitration and solicitor negotiation can all help you reach an agreement without going to court.
You can apply for the conditional order after a minimum of 20 weeks, and then for the final order six weeks and a day after that, so around seven months at the earliest. It often takes longer, especially if you wait for finances to be agreed before applying for the final order.
IN THIS GUIDE
Does separation affect my will?
What happens to my will once the divorce is final?
What happens if I die before the divorce is finalised?
Can my former spouse still make a claim against my estate?
What else should I review besides my will?
PART OF OUR SERVICE
Divorce & separation
We handle both the divorce and the financial order, so nothing is left unresolved.
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How we work
An experienced family solicitor will run your matter from the first meeting onwards, and you will deal with them directly rather than being passed between members of a team.
Part of their job is to help you decide where your time and money are best spent. In most divorces there are points worth pressing and points that make little difference to the end result, and we will be straightforward with you about which is which.
A lot of matters are resolved through negotiation or mediation, and where that is realistic we will recommend it. Where it is not, because the other side will not engage, or disclosure is incomplete, or the issues are genuinely contested, we will advise you on taking the matter to court and act for you there.
Rushton Family Law is the sister brand of Vardags. If your case involves complex finances or international issues, we will introduce you to the Vardags team.
