Codicil Estate Planning & Consultancy

How Divorce Can Affect Your Estate Planning in England and Wales

Divorce is a major life change, and it has important implications for your will and wider estate planning. This article outlines some of the key points for individuals divorcing or recently divorced in England and Wales, and highlights practical steps you may wish to consider.

This is general information only and is not legal, tax or financial advice. Codicil Estate Planning is an unregulated estate-planning consultancy, not a firm of solicitors or regulated financial advisers. You should take personalised advice from suitably qualified and regulated professionals before making or changing a will, trust, pension, insurance or investment arrangement.

The legal background: section 18A of the Wills Act 1837

In England and Wales, the effect of divorce on a will is primarily governed by section 18A of the Wills Act 1837. You can read the current legislation on the UK Government’s official database at legislation.gov.uk (section 18A). Please note that legislation and case law can change, so it is sensible to check for up-to-date information when reviewing your affairs.

Broadly speaking, once a marriage or civil partnership is legally ended by a final order (previously known as a decree absolute), the law treats your former spouse or civil partner as if they had died on the date the final order was made, but only for certain parts of your will that relate to them.

Why divorce does not automatically revoke your whole will

Divorce does not cancel your will in its entirety. Instead, section 18A generally cancels three types of provision that relate to your ex-spouse or ex-civil partner:

• Gifts to them in your will
• Any appointment of them as an executor or trustee
• Any appointment of them as a guardian for your children

Those specific provisions are usually treated as if your ex-partner had died on the date of the final order. The rest of your will normally carries on operating. This can sometimes lead to results that you did not intend, especially if you made your will when you first married or when children were very young.

Because the remainder of the will stays in force, it is rarely wise to rely on section 18A alone. A fresh, up-to-date will that reflects your current wishes is usually much clearer and safer.

Separation, final orders and timing

The timing of your divorce is critical. Section 18A generally only takes effect once the court has made the final order that legally ends your marriage or civil partnership. Before that point, you are still legally married or in a civil partnership, even if you have separated and live completely separate lives.

That means:

• If you separate but have not yet started divorce or dissolution proceedings, your existing will continues to operate exactly as written, including any gifts to your spouse or civil partner and any role they have as executor or trustee.
• If proceedings have started but no final order has been granted, the same applies: they are still legally your spouse or civil partner for will purposes.
• Only once the final order is made does section 18A usually treat them as if they had died for the specific purposes described above.

This is one reason why many separating couples choose to review or replace their wills early in the separation process, rather than waiting until after the divorce or dissolution is final.

Executors, trustees, guardians and substitute beneficiaries

Your will does more than simply pass on assets. It also appoints key people to important roles. Divorce can create gaps or unintended results in these appointments, for example:

• Executors – If your ex-partner was your main or only executor, section 18A will usually remove them after the final order. If you did not name a suitable replacement, your executorship arrangements may no longer work well.
• Trustees – Many wills include trusts for children or other family members. If your ex-partner was due to act as trustee, they may no longer be able to do so after the final order, leaving gaps in the trustee team.
• Guardians for children – Parents often name a spouse or civil partner as guardian in case both parents die. After divorce, arrangements for guardianship may need to be reconsidered carefully to reflect your changed family circumstances.
• Substitute beneficiaries – If gifts to your ex-partner are cancelled by section 18A, the will should specify who inherits instead. If no clear substitute is named, part of your estate could pass under the intestacy rules.

A thorough review of these roles after separation or divorce helps ensure that the right people are appointed and that your wishes remain workable in practice.

The risk of intestacy after divorce

If your will no longer works as intended after divorce, or if you never made a will, some or all of your estate may be distributed under the intestacy rules. These rules set out a fixed order of entitlement and do not take into account personal relationships, informal promises or detailed family arrangements.

Depending on your circumstances, intestacy could mean that:

• Certain children, stepchildren or other dependants receive less than you would wish, or nothing at all.
• Parents or siblings inherit when you would have preferred assets to pass to children, grandchildren or a new partner.
• Assets are divided in a way that causes practical difficulties for a family home or business.

A clear, up-to-date will helps reduce the risk of unintended outcomes and future disagreements within a family.

Pensions, life insurance and investment nominations

Many financial arrangements sit outside your will and follow their own rules and nomination procedures. Divorce does not automatically update these nominations. You may need to review:

• Pension death benefit nominations – Most workplace and personal pension schemes allow you to nominate who should be considered for any lump sum or, in some cases, survivor pension. These nominations are usually not governed directly by your will.
• Life insurance policies – Where policies are written in trust or assigned, the paperwork may name beneficiaries or trustees that are no longer appropriate after a divorce.
• Investment and savings products – Some products (for example, certain investment bonds) may allow you to nominate beneficiaries or include trust arrangements.

You should contact the relevant pension providers, insurers and investment managers to understand how nominations work in each case and how to update them. The Government provides general guidance on wills at GOV.UK: Making a will, which includes information about updating a will and related considerations.

Lasting Powers of Attorney (LPAs)

Lasting Powers of Attorney (LPAs) allow you to appoint people (attorneys) to make decisions on your behalf if you lose capacity in future. Many couples appoint each other as primary attorneys. Divorce can have different effects on LPAs depending on how they are structured and whether your former spouse or civil partner is the only attorney.

Points to consider include:

• In some cases, an LPA may be automatically revoked in whole or in part when a marriage or civil partnership ends.
• If your ex-partner was appointed jointly with others, the way they were appointed (jointly, or jointly and severally) can affect whether the whole arrangement still works.
• Even where an LPA technically remains valid, you may feel it is no longer appropriate for your former spouse or civil partner to act as your attorney.

It is therefore important to review your LPAs after separation or divorce. In many cases, it may be sensible to formally revoke and replace them with new documents appointing people you now feel are best placed to support you.

Financial remedy orders, clean breaks and estate planning

Financial remedy orders (including clean-break orders) deal with how assets and income are shared between you and your former spouse or civil partner on divorce or dissolution. They may cover the family home, lump sums, pensions and maintenance. However, they usually do not replace the need for clear estate planning.

Some points to bear in mind:

• A clean-break order may limit or end future financial claims between you and your former spouse during your lifetimes, but it does not automatically control what happens to your assets when you die.
• Even where a financial order exists, certain people (including former spouses and dependants) may, in some circumstances, still be able to make a claim against your estate under the Inheritance (Provision for Family and Dependants) Act 1975.
• The way assets are divided on divorce may change who is financially dependent on you and who may reasonably expect to benefit from your estate in future.

Coordinating your will, any trusts and your financial arrangements with the terms of your financial remedy order can help reduce uncertainty and the risk of later disputes. This is an area where specialist, regulated legal advice is often advisable.

Children, blended families and complex assets

Divorce often leads to more complex family structures and asset arrangements. These situations can make estate planning more sensitive and technically involved. For example:

• Children from previous relationships – You may wish to balance provision between children from different relationships, stepchildren and a new partner.
• Blended families – Some people want to allow a new partner to benefit from a home or income during their lifetime, while ultimately preserving capital for children from an earlier relationship. Trusts are often used for this type of arrangement.
• Business assets – If you run a business, your will and any shareholder or partnership agreements need to work together, and consideration should be given to who will own and control the business in future.
• Overseas property – Property or investments in other countries may be subject to different inheritance rules and taxes. Local advice in each relevant country is often essential.

Because the law in this area can be complex and subject to change, people in these situations often benefit from working with suitably qualified solicitors and financial advisers who specialise in estate planning, trusts and cross-border matters. An estate-planning consultancy like Codicil can help you think through your goals and prepare for more detailed regulated advice.

A practical post-divorce estate planning checklist

After your divorce or dissolution is final, you may find it helpful to work through a structured checklist. The right order for you will depend on your circumstances, but commonly includes:

• Confirm key dates and orders
  • Keep a copy of your final order (decree absolute) and any financial remedy or clean-break orders with your personal papers.
  • Note any ongoing maintenance or other obligations that may affect your future financial planning.
• Review or make a new will
  • Decide who should now benefit from your estate, and on what terms.
  • Appoint appropriate executors, trustees and guardians.
  • Consider whether trusts may be appropriate for children, vulnerable beneficiaries or blended family arrangements.
• Check your will still works in practice
  • Ensure any gifts of specific assets (for example, a property you no longer own) are updated.
  • Check that substitute beneficiaries are clearly named where needed.
• Review LPAs
  • Check whether any existing LPAs are affected by your divorce.
  • Decide whether to revoke and replace them so that your chosen attorneys still reflect your wishes.
• Update nominations and beneficiary forms
  • Contact pension providers, life insurers and investment managers to review and update beneficiary nominations and any relevant trusts.
• Consider insurance and protection
  • Discuss with a regulated financial adviser whether life insurance or other protection remains appropriate, especially where maintenance, mortgage liabilities or children’s needs are involved.
• Review ownership of assets
  • Check how any jointly owned property, bank accounts or investments are now held, and whether further changes are required.
• Keep documents organised
  • Store your will, LPAs and key orders safely, and tell your executors and attorneys where they can be found.

Conclusion

Divorce or dissolution is a natural point to take stock of your estate planning and ensure your arrangements still reflect your values, relationships and practical needs. While section 18A of the Wills Act 1837 makes certain automatic changes to how your former spouse or civil partner is treated in your will, it does not replace the need for a clear, up-to-date plan covering your will, LPAs, pensions, insurance and other assets.

Codicil Estate Planning can support you in thinking through your options and preparing for discussions with solicitors and regulated financial advisers, so that your eventual legal documents and financial arrangements are aligned with your long-term intentions.

Disclaimer

This article is for general information only and reflects a broad understanding of the law of England and Wales at the time of writing. It does not take into account your personal circumstances and must not be relied upon as legal, tax, financial or investment advice. Codicil Estate Planning is an unregulated estate-planning consultancy and is not authorised or regulated by the Solicitors Regulation Authority, the Financial Conduct Authority or any other regulator. You should obtain specific advice from appropriately qualified and regulated professionals before making or changing a will, trust, pension, life insurance, investment or other financial arrangement.