Does Divorce Invalidate a Will? What Happens When the Wrong Person Inherits
When someone dies and their will leaves everything to a former spouse, it raises an immediate question: does divorce invalidate a will, or does the ex-partner simply inherit?
The answer depends on where in the UK the deceased lived. The rules differ between England and Wales, Scotland, and Northern Ireland. This article focuses on England and Wales, where the law does something specific but incomplete when a marriage ends.
What the law does (and doesn’t do) after divorce
In England and Wales, divorce does not revoke a will. The will remains legally valid after a divorce. However, under section 18A of the Wills Act 1837, divorce does affect how the will is read.
When a marriage ends in divorce, any gift left to the former spouse in the will is treated as if the former spouse died on the date the divorce was finalised. The same applies to any appointment of the former spouse as executor (the person legally responsible for administering the estate).
So the former spouse does not automatically inherit. Instead, the gift falls back into the residue of the estate (what is left after specific gifts are paid out). If there is no residue clause, or if the residue itself was left to the former spouse, that portion of the estate falls into intestacy (the rules that apply when no valid will covers part or all of an estate).
What intestacy means in practice
Intestacy rules follow a strict legal order, which you can follow in our intestacy rules flowchart. Under the rules for England and Wales, the estate passes to the closest surviving relatives: first a spouse or civil partner, then children, then parents, then siblings, and so on.
If the deceased had adult children, they would likely inherit under intestacy. If the deceased had no children and no surviving close relatives, the estate could pass to distant relatives or, in extreme cases, to the Crown as bona vacantia.
The problem is clear. A person may have intended their estate to pass to their children, a new partner, a sibling, or a close friend. However, because they never updated their will after divorce, the law steps in and decides for them. The outcome may be fair by legal standards but wrong by any reasonable understanding of what the deceased would have wanted.
When a new marriage cancels everything
Here is a separate but equally important point. If the deceased remarried after the divorce, that remarriage automatically revokes the previous will entirely, as we explain in does marriage revoke a will? This rule applies regardless of whether the new spouse is still alive or whether the marriage ended before death.
As a result, if someone divorced, remarried, and never made a new will, they died intestate (without a valid will). Their estate passes under intestacy rules, not under any document they signed years earlier. In that situation, their new spouse inherits first, under intestacy, which may or may not reflect what the deceased would have wanted.
Who might have a claim if they didn’t inherit?
If you believe you should have inherited, or received more, there are legal routes worth exploring.
The Inheritance (Provision for Family and Dependants) Act 1975
This Act (often called the 1975 Act) allows certain people to apply to the court for reasonable financial provision from an estate. It applies whether the deceased left a will or died intestate.
The people who can apply include:
- A spouse or civil partner of the deceased
- A former spouse or civil partner who has not remarried
- A child of the deceased (including adult children)
- Someone treated as a child of the family
- Someone who was financially dependent on the deceased
The court looks at several factors, including the size of the estate, the financial needs of the applicant, and the relationship between the applicant and the deceased. There is a time limit: claims must be brought within six months of the grant of probate (the legal document that gives the executor authority to deal with the estate).
This route is not straightforward. Courts do not override a will simply because someone feels hard done by. However, where there is a clear dependency or a strong relationship that was not reflected in the will, the 1975 Act can provide a remedy.
Challenging the will itself
In some cases, the will may be open to challenge on other grounds. For example, if the deceased lacked mental capacity when they signed the will, or if someone exerted undue influence over them, the will may be invalid.
These are serious legal arguments. They require evidence and, almost always, specialist legal advice before anyone pursues them. It is also worth understanding the realistic success rate of contesting a will before committing to a claim.
Proprietary estoppel
This is a legal principle (meaning, roughly, that a person cannot go back on a promise that someone else has relied on to their detriment). If the deceased made clear promises about who would inherit, and the person who expected to inherit acted on that promise in some way, a court may intervene.
Again, this is specialist territory. It requires a solicitor who understands contested estate law.
What executors should know
If you are an executor administering an estate where the will has not been updated since a divorce, you should take legal advice before distributing anything. Distributing the estate incorrectly can make you personally liable.
The interaction between the Wills Act, intestacy rules, and the 1975 Act is complex. Getting it wrong is costly. Getting proper advice early is not.
Updating a will after divorce: a note for the living
For anyone reading this who has divorced and not yet updated their will, the position is straightforward. Make a new will. The legal rules in England and Wales offer some protection, but they do not replace a clear, up-to-date document that reflects your actual wishes.
Equally, if you have remarried, a new will is essential. Remarriage cancels any existing will automatically.
Speak to a legal adviser about your options
If you are dealing with an estate where the deceased did not update their will after divorce, the right next step is to speak to a qualified solicitor. The options available to you depend on the specific facts: who the deceased was, what the will says, how the estate is structured, and what your relationship to the deceased was.
You can book a free consultation with an SRA-regulated solicitor through The Probate Network. A solicitor can review the will, explain which legal routes apply to your situation, and advise on whether a claim under the 1975 Act or another route is worth pursuing.
This article is for general guidance only and does not constitute legal advice. Rules can change and every estate is different. For advice on your own circumstances, speak to a qualified solicitor. You can book a free legal consultation through The Probate Network.
Frequently asked questions
Does divorce revoke a will in England and Wales?
No. Divorce does not revoke a will in England and Wales. The will remains valid, but the law treats any gift to the former spouse as if they died on the date the divorce was finalised. This means they generally cannot inherit under the will, but the will itself is not cancelled. Only a new marriage revokes an existing will automatically.
Can I contest a will if I was left out because the deceased forgot to update it after their divorce?
Possibly. If you are a child, a financial dependant, or another qualifying person under the Inheritance (Provision for Family and Dependants) Act 1975, you may be able to apply to the court for reasonable financial provision from the estate. There is a six-month time limit from the grant of probate. A solicitor can assess whether you have grounds and advise on the strength of any potential claim.
