You have divorced since writing your Will – do you need to update it?

Yes, is the short answer! If you have divorced since writing your Will, you should definitely update it. You should do so after any major life event and a divorce is certainly one of them.

The rules around Wills and divorced couples are governed by the Succession (Scotland) Act 2016. This Act updated the 1964 act of the same name. One of the reasons for the update is to reflect that divorce is much more common today than it was sixty years ago.

If you are married, you will likely name your spouse as an executor in your Will. They will almost certainly be a beneficiary. Even if they are not named, your spouse is entitled to Legal Rights to your estate. If you have since divorced, there are immediate impacts on the provisions of your Will.

Divorce – immediate impact on your Will

Much depends on the exact wording of your Will. Usually, immediately on divorce, what happens is that your Will treats your ex-spouse exactly as it would if they had died before you.

As an extreme, if you have no children and your Will simply said, “I leave everything to my spouse”, all or part of your estate can fall into intestacy if no other provision is made. It is highly unlikely that a Will written with the help of a solicitor would contain only this provision, but an ‘off the shelf’ or a homemade Will might do!

If you have named your spouse as executor and have not named a joint or substitute executor and you have divorced, an application will need to be made to the courts to have a new executor appointed. This is time consuming and can be expensive.

What if you still want to have your former spouse as executor or beneficiary?

Your Will must expressly state that you are happy for your spouse to continue to act as executor or be a beneficiary after divorce.

It is not uncommon for a Will to retain mention of a former spouse if you have young children. However, do not take it for granted. Check carefully what your Will says and seek your solicitor’s advice.

What is the impact on your Will if you are separated but not yet divorced?

In this case, whatever reference you make to your spouse in your Will still stands. If you have nominated your spouse as executor and/or beneficiary as a consequent of being your spouse, they would become executor and beneficiary upon your death.

If you have named a different executor and left everything to the proverbial “cat and dog home”, your spouse would continue to enjoy Legal Rights to your estate under Scottish law, regardless of what your Will says.

What if you remarry, will the entitlements of your Will transfer to your new spouse?

If you remarry but do not change your Will, as your Will will almost certainly identify your former spouse by name, their entitlement will be removed because of the Succession (Scotland) Act 2016. However, if you want to appoint your current spouse as executor and to benefit from your Will, you need to update it to reflect your wishes.

If you do not divorce but simply ‘move in’ with a new partner, your spouse will continue to retain rights you may not want them to have. Moving in with a partner regardless of whether you get married or not is a “major life event” and should prompt you to review your Will. Contact your solicitor as soon as possible to deal with this.

When should I seek professional advice?

If you are separated and contemplating divorce, you should give urgent attention to your Will. Our solicitors have many years of experience of dealing with sensitive situations and can provide advice on your options.

Some of our solicitors focus on Wills and Estate Planning and are ready and waiting to give you advice tailored to your individual circumstances. Get in touch today for a conversation.
It is also important to note that everything that applies between spouses in relation to Wills and Divorce, also applies in relation to Civil Partnerships.