Divorce absorbs everything. There are forms to file, a house to value, pensions to untangle and, very often, children in the middle of it all. Somewhere near the bottom of the list — usually forgotten entirely — sits a document that could quietly undo all of it: your Will.
We meet a lot of people who assume their divorce has “sorted out” their estate. It hasn’t. In England and Wales, separation and divorce interact with Wills and trusts in ways that catch out even well-organised, well-advised people. Here’s what actually happens, and what to do about it.
The rule most people get backwards
Marriage revokes a Will. Divorce doesn’t.
That surprises almost everyone, but it’s the position under the Wills Act 1837. Getting married automatically cancels any Will you made beforehand, unless that Will was specifically written in contemplation of that marriage and says so. Getting divorced does something much narrower — and only at the very end of the process.
Which means the assumption runs precisely the wrong way round. The event people think is neutral (marriage) wipes the slate clean. The event people think wipes the slate clean (divorce) leaves most of your Will standing.
The danger window: separation to final order
This is the part that matters most, and it’s the part almost nobody is told about.
From the moment you separate until the court makes your final order (what used to be called the decree absolute, renamed under the no-fault divorce rules in April 2022), you are still legally married. Not “sort of” married. Fully married, for every purpose that touches your estate.
So if you died during that period:
- If you have a Will leaving everything to your spouse, they inherit everything. The fact that you’ve separated, instructed solicitors, and haven’t spoken in eight months makes no legal difference at all.
- If you don’t have a Will, the intestacy rules apply — and your separated spouse is still your spouse under those rules. Where there are children, they take your personal possessions, the first £322,000 of your estate (the statutory legacy), and half of whatever is left. Where there are no children, they take the lot.
- If you own your home as joint tenants, it passes automatically to your spouse on your death by survivorship, completely outside your Will. No Will, however carefully drafted, can override that.
A divorce can easily run for a year or more. That is a long time to leave an estate pointing at someone you are actively separating from.
What to do about it. Two things, and neither is complicated. First, make a new Will now — you can do this at any point during a divorce; you don’t need to wait for anything or anyone’s permission. Second, if you own property jointly, consider severing the joint tenancy, which converts your ownership into a share you can leave to whoever you choose. It’s a short notice served on the other owner and registered at the Land Registry. Until it’s done, your Will simply doesn’t reach your half of the house.
One useful footnote: while you are still married, transfers between you and your spouse remain exempt from inheritance tax. That exemption ends with the final order. Timing can matter more than people expect.
What actually changes when the final order arrives
Once the final order is made, section 18A of the Wills Act 1837 kicks in. Your Will is not revoked. Instead, it is read as though your former spouse had died on the date the marriage ended.
The practical effects:
- Any gift to them fails.
- Their appointment as executor or trustee fails.
- Everything else in the Will carries on exactly as written.
That sounds tidy, and sometimes it is. But it creates its own problems.
A hole where your estate used to go
If your Will left everything to your spouse with no substitute beneficiary named, that gift now fails and there is nothing to catch it. Your estate falls into intestacy — the very outcome a Will exists to prevent.
No executor
If your spouse was your only named executor, you now have a Will with nobody appointed to administer it. That means delay, cost, and a court application at the worst possible time for your family.
Guardianship and minor children
If your children are under 18 and your ex-partner survives you with parental responsibility, they will usually be the one bringing up the children — and, unless you have planned otherwise, the one with practical control over money you leave to those children. That is not necessarily a bad thing. But it should be a decision, not an accident.
The assets your Will never touched anyway
Divorce is a good moment to notice that some of your most valuable assets don’t pass under your Will at all:
- Pension death benefits are usually paid at the discretion of the scheme trustees, guided by your expression of wish form. If that form still names your ex, the trustees will take it seriously. Update it.
- Life insurance written in trust pays to the named beneficiaries, not through your estate.
- Death-in-service benefits through an employer follow their own nomination process.
- Jointly held bank accounts and property pass by survivorship.
Rewriting your Will and leaving these untouched is a bit like changing the locks and leaving a key under the mat.
Trusts and divorce: what they can and can’t do
Trusts come up in two very different conversations during a divorce, and it’s worth keeping them apart.
Trusts are not a shield against a financial claim
Occasionally someone asks whether putting assets into a trust will keep them out of a divorce settlement. The honest answer is no, and attempting it tends to make things worse.
The family court has wide powers here. It can vary a nuptial settlement — broadly, a trust connected with the marriage — under the Matrimonial Causes Act 1973. It can treat trust assets as a financial resource available to a spouse when deciding what’s fair, even where that spouse has no absolute entitlement. And it can set aside transactions made with the intention of defeating a claim, including transfers into trust. Full and frank financial disclosure is a duty, not a tactic, and courts respond poorly to arrangements that look like asset-hiding.
If you have an existing trust interest — a family trust, an inheritance held in trust, a business structure — it needs to be disclosed and properly explained, not concealed. Get it in front of your family lawyer early.
Trusts genuinely do protect what comes next
Where trusts earn their place is after the dust settles, in planning what happens to your money on your death.
Consider a common situation. You divorce, you remarry, and you leave everything to your new spouse expecting the children from your first marriage to inherit eventually. Your new spouse survives you, inherits outright, and later remarries, or makes a new Will, or needs residential care. Your children’s inheritance can disappear entirely — not through anyone’s bad faith, just through the ordinary operation of outright gifts.
A life interest trust can let a new partner live in the property and benefit from an income for life, while the capital is preserved and passes to your children when that interest ends. A discretionary trust can hold a share for children who are young, vulnerable, or going through difficulties of their own, with trustees you choose exercising judgment about when and how they benefit. Trusts can also add a layer of protection where a child’s own relationship later breaks down.
None of this is exotic and none of it requires a large estate. For most blended families, it’s the difference between hoping things work out and arranging that they do.
Three more things worth knowing
Remarriage revokes your new Will. Having gone to the trouble of rewriting everything post-divorce, marrying again cancels it — unless the Will was made in contemplation of that specific marriage and says so on its face. This is one of the most common ways carefully made plans unravel. (The Law Commission recommended abolishing this rule in May 2025 and published a draft Bill to replace the Wills Act 1837. At the time of writing it has not become law, so the current rule still applies.)
Divorce affects your Lasting Powers of Attorney too. The appointment of a former spouse as your attorney is revoked when the marriage ends, unless the document says otherwise. If they were your only attorney and you named no replacement, the LPA may fail altogether — leaving your family facing a Court of Protection application if you ever lose capacity.
A divorce is not a clean break unless the order says so. Financial claims between spouses survive the final order unless they are dismissed by a financial remedy order. Without one, a former spouse who has not remarried may be able to bring a claim against your estate after your death under the Inheritance (Provision for Family and Dependants) Act 1975. If you are divorcing, ask your family lawyer specifically about a clean break and about barring future claims against your estate.
A short checklist
As soon as you separate:
- Make a new Will
- Consider severing any joint tenancy on property
- Update pension expression of wish forms and life policy nominations
- Review your LPAs and name replacement attorneys
When the final order is made:
- Review the Will again, now that gifts to your ex have fallen away
- Check that executors, guardians and substitute beneficiaries still make sense
- Confirm the financial order includes a clean break where appropriate
If you remarry:
- Make a new Will — and consider whether a trust is needed to protect children from your first marriage
Talk to us
At Puna Legal we work exclusively in estate planning, and we spend a good deal of time with people who are mid-divorce, newly divorced, or building a second family. There is no charge for an initial conversation, our fees are fixed and agreed upfront, and we will tell you honestly if you don’t need a trust.
Book a free chat — or read more about our Wills and Trusts services.
This article is general information about the law of England and Wales as at July 2026, and is not legal advice on your circumstances. The rules differ in Scotland and Northern Ireland. Divorce and estate planning overlap in ways that depend heavily on individual facts — please take advice before acting.