Do not assume a divorce permanently removes your former spouse from your will. Section 2B of the Wills Act provides a limited rule when a person dies within three months of divorce or annulment, leaving a will made before that event. It does not replace the need to sign a will reflecting your actual wishes.
Hugh Raichlin Attorneys can coordinate will drafting with divorce advice, so that a settlement, a will and the practical arrangements for your family do not point in different directions. Begin the review while the divorce is being planned and revisit it when the decree is granted.
What the three-month rule does
Broadly, where its conditions apply, the earlier will is implemented as though the former spouse died before the marriage ended. The rule has an exception where the will shows an intention to benefit that person despite the divorce. The effect on particular gifts depends on the wording of the will and the applicable succession rules.
Once the three-month period has passed, the statutory protection is no longer available on that basis. An unchanged will may again benefit the former spouse. There is no administrative reminder or automatic replacement will waiting at the end of that period.
Separation is not the same as a divorce decree
Moving out, negotiating a settlement or starting court proceedings does not mean the marriage has already been dissolved. A person who dies during that period may leave a very different legal position from someone who dies after the decree. Update your wishes through a properly executed document rather than relying on the expected outcome of the proceedings.
Review more than the name of the main beneficiary
- Who receives the residue of the estate, and who receives it if that person cannot inherit?
- Are gifts of the family home workable given the divorce settlement, ownership and bond position?
- Is the chosen executor still appropriate, and is a substitute named?
- How should an inheritance for a minor child be administered?
- Are any trust provisions still suited to the family and the people expected to administer them?
- Does the will accidentally revoke a separate will dealing with foreign assets?
Keep estate assets and nominated benefits separate
Retirement-fund benefits, insurance policies and other nominated benefits are not all distributed in the same way as assets passing under a will. Changing the will does not necessarily change the relevant nomination or override a fund’s statutory duties. Review each arrangement with the provider and obtain advice about the applicable rules.
Similarly, a divorce settlement may create obligations that survive the divorce. A new will does not simply cancel debts or maintenance responsibilities. The estate plan should account for them rather than promise beneficiaries assets that may first have to meet legitimate claims.
A practical update sequence
- Locate every signed will and codicil, plus the divorce decree or current draft settlement.
- List the gifts and appointments you want to keep, remove or replace.
- Ask for advice on conflicts between the settlement, asset ownership and the proposed will.
- Execute the revised will with the required formalities; an instruction email or unsigned draft is not a safe substitute.
- Store the original securely and tell the appropriate person where it can be found.
Questions clients ask
Can I still benefit my former spouse?
Yes, that may be your deliberate intention. Record it clearly with legal advice so that the will is not left to operate by accident or ambiguity.
Can I just cross out my former spouse’s name?
Alterations to a signed will have their own formalities and interpretation risks. A properly prepared replacement or codicil is safer than informal changes.
Does nominating a guardian settle every future issue about my children?
No. Guardianship and parental responsibilities depend on the circumstances and applicable law. Discuss the surviving parent’s position and the child’s interests rather than assuming a will can override them.
Make this part of the divorce checklist
HRA’s divorce and wills teams can identify the documents that need to work together. Bring your existing will, marital-property documents, family details, asset list and any settlement. The initial telephone discussion establishes whether the firm can assist; a paid consultation is arranged where appropriate.
This is general information. The wording and timing of your documents determine the advice needed.