Professional Practice Guidance The Effect of Marriage, Civil Partnership and Divorce on a Will
Marriage, civil partnership and divorce can all have significant—and sometimes unexpected—effects on a client’s Will. Understanding the client’s current relationship and future intentions is therefore an essential part of the advice process.
Marriage and Civil Partnership
Where clients marry or enter into a civil partnership, any existing Will is normally revoked automatically.
The first advice point is to establish the nature of the relationship the clients are in and how they see its future. This will dictate the advice you give.
No Intention of Marrying
- For inheritance tax purposes, unmarried partners will not benefit from the spousal exemption when leaving assets to each other.
- The transferable nil-rate band on the second death will not be available.
- Where applicable, the residence nil-rate band may also be affected.
- If the clients subsequently marry, existing Wills will normally be revoked under section 18 of the Wills Act. Section 18B applies to civil partnerships.
Intending to Marry
- Clarify whether the clients intend to marry, enter into a civil partnership or have yet to decide.
- Include the appropriate contemplation of marriage and/or civil partnership clause.
- This clause can prevent the Will from being revoked when the marriage or civil partnership takes place.
- Ensure the correct terminology is used for the event the clients are contemplating.
Contemplation of Marriage Clauses
There are two particularly important points to consider when using a contemplation clause.
The Future Spouse Must Be Identified
The law does not recognise a contemplation of marriage clause relating to an unspecified or non-existent future spouse. The marriage must be contemplated with a specific person, who should be named in the Will.
Case example Court v Despallieres [2009]
In this case, the testator had not named the person concerned. As a result, the contemplation of civil partnership clause was set aside and the Will was revoked.
How Long Does the Clause Remain Effective?
It is generally believed that there is no specific time limit between a Will containing a contemplation clause being signed and the marriage taking place before the testator’s death.
Case example Re Gray’s Estate [1963]
The testator married his wife 25 years after signing his Will. The Court found that 25 years was too long for the contemplation clause to remain effective.
The Effect of Divorce or Annulment
On completion of the decree absolute, the law treats the divorced parties as no longer having a financial obligation to provide for one another.
Any reference to the former spouse or civil partner in the Will is treated as though that person had predeceased the testator.
What Does This Mean in Practice?
- The Will remains valid, but any reserve beneficiaries will inherit instead.
- If there are no reserve beneficiaries, the estate may be distributed under the rules of intestacy.
- If the former spouse or civil partner was appointed as an executor, they cease to have legal standing to act.
- If the client still wants their former spouse or civil partner to benefit, a new Will may be needed unless the existing Will was written in contemplation of divorce.
Before the Decree Absolute
Divorce is not always a quick or straightforward process. Some couples remain estranged for years or even decades. During this period, an existing Will that leaves everything to the other spouse can remain legally effective.
Jointly owned assets also require careful consideration. A surviving spouse could continue to inherit assets through survivorship, including a family home held as joint tenants or money in a joint bank account.
Unless the client still wants their estranged spouse or civil partner to benefit, they should be advised to make a new Will during the period before the decree absolute is granted. Where necessary, they should also review their assets and how they are owned.
Clients Who Are Already Married or in a Civil Partnership
As a matter of good practice, ask these clients whether they had any pre-existing Wills.
Although both parties may want to benefit each other, their previous Wills might have contained gifts that they would like to retain in their new post-marriage or post-civil partnership Wills.
Practical Points for Willwriters
- Establish the client’s current relationship status and future intentions.
- Use the correct wording in contemplation clauses.
- Ask to see copies of previous Wills where appropriate.
- Ask whether any earlier gifts should be carried forward.
- Encourage separating clients to review their Wills and asset ownership without unnecessary delay.