Do I Need a New Will After Getting Divorced?

Yes, you should make a new will after divorce. While divorce doesn't completely invalidate your will, it changes how it's interpreted in ways that might not match what you want.

If you've recently divorced and still have an old will naming your ex, here's exactly what happens — and what you need to do about it.

What Divorce Does to Your Will

When your divorce becomes final (decree absolute), the law treats your ex-spouse as if they died on that date. This means:

• Gifts to your ex-spouse fail — they don't receive anything left to them
• Your ex can't be your executor — they're treated as having predeceased you
• The rest of your will remains valid — other provisions still apply

So your will isn't completely void, but a critical part of it probably is.

What Could Go Wrong

Where Does Your Estate Go?

If your will left everything to your ex-spouse, and that gift fails, what happens depends on your will's wording:

• Named substitutes: If your will says "to my spouse, or if they predecease me, to [someone else]" — that someone else inherits
• Residuary clause: The failed gift might fall into the residue
• Partial intestacy: If there's no backup provision, that part follows intestacy rules

Intestacy might mean your children inherit, or your parents, or siblings — possibly not what you'd choose now.

No Executor

If your ex was your only executor, you effectively have no executor. The court will appoint an administrator, causing delay and expense.

Outdated Guardians

If you named your ex as guardian for your children (common in married couples), that provision may no longer make sense.

Common Scenarios

Scenario 1: Simple Will Leaving Everything to Spouse

Before divorce: "I leave everything to my spouse"
After divorce: Gift fails → goes to residuary beneficiaries or intestacy

Problem: You probably didn't intend for distant relatives to inherit instead of, say, your children.

Scenario 2: Will With Backup Provisions

Before divorce: "To my spouse, or if they predecease me, to my children equally"
After divorce: Spouse treated as predeceased → children inherit

Still a problem: Maybe you want different proportions now, or a trust for young children, or different executors.

Scenario 3: Complex Will With Trusts

Before divorce: Life interest trust for spouse, then children
After divorce: Life interest fails → trust structure may not work as intended

Definitely a problem: You need professional help to sort this out.

What You Must Do Now

Step 1: Make a New Will Immediately

Don't try to patch the old one. Make a fresh will that reflects your current wishes:

• Who you want to inherit
• New executors you trust
• Updated guardianship for children
• Any trust provisions needed

Step 2: Consider Your Children

If you have children from the marriage, think about:

• Who should be their guardian if you die?
• Should they inherit at 18, or later?
• How to balance their needs with any new partner?
• Do you want their inheritance protected from your ex?

Step 3: Update Your Executors

Choose executors who:

• You trust completely
• Will be able to act (consider age and health)
• Aren't in conflict with beneficiaries
• Ideally, aren't your ex

Step 4: Review Pension and Life Insurance

These often pass outside your will via nomination forms. Check and update:

• Workplace pension death benefits
• Personal pension nominations
• Life insurance beneficiaries

An old nomination form could mean your ex gets your pension.

Step 5: Update Lasting Powers of Attorney

If you made LPAs naming your ex as attorney, you should revoke them and make new ones with updated attorneys.

What About Separation (Not Yet Divorced)?

If you're separated but not yet divorced:

• Your ex is still your legal spouse
• Your will operates as written
• Gifts to your spouse will still take effect

You can make a new will during separation. Just be aware that if you later reconcile and remarry, that new marriage will revoke your will again.

Protecting Children's Inheritance

After divorce, many parents want to ensure children eventually inherit, even if they leave assets to a new partner. Options include:

Life Interest Trust

Your new partner gets to use assets (e.g., live in the house) for life, but on their death, assets pass to your children — not your partner's family.

Discretionary Trust

Trustees decide how to distribute between your partner and children based on circumstances. More flexible but more complex.

Direct Gifts with Charging Order

You leave your share of the house to children but give your partner the right to live there. Less flexible than a trust.

If You're Remarrying

Important: Getting married automatically revokes your will (unless made in contemplation of that specific marriage).

If you're planning to remarry:

• Make a new will now dealing with your current situation
• Make another will before/after the wedding with appropriate provisions
• Consider prenuptial agreements for assets you want to protect

The Old Way vs Our Way

The Old Way	Our Way
Assume divorce "deals with" the will	Understand exactly what happened to your will
Leave the old will in place	Make a new will promptly
Forget about pension nominations	Update all death benefit nominations
Risk unintended beneficiaries	Deliberate, planned distribution