Learning Outcomes
This article explains the statutory consequences of divorce or civil partnership dissolution for provisions in a will, including:
- gifts, appointments, and powers automatically revoked by law
- timing of revocation and the role of the final order
- scope of partial revocation and operation of substitutional provisions
- effective contrary intention clauses and distinctions from insufficient general statements
- practical administration outcomes when executor appointments fail, including grants of letters of administration with will annexed and order of entitlement
- risks of partial intestacy and strategies for updating wills after relationship breakdown
SQE1 Syllabus
For SQE1, you are required to understand the statutory effects of divorce or civil partnership dissolution on will provisions, with a focus on the following syllabus points:
- the effect of divorce or dissolution on gifts, appointments, and powers in favour of a former spouse or civil partner
- the operation of s.18A Wills Act 1837 and equivalent provisions for civil partnerships (s.18C)
- the concept of “contrary intention” and how it can prevent automatic revocation
- the practical impact of partial revocation, substitutional gifts, and the risk of unintended intestacy
- how to advise clients on updating wills during and after relationship breakdowns, and the administrative consequences if appointments fail
Test Your Knowledge
Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.
- What happens to a gift to a spouse in a will if the testator divorces after making the will and does not update it?
- Does separation (without a final divorce or dissolution) affect the operation of a will in favour of a spouse or civil partner?
- What is required for a will provision in favour of a former spouse to survive divorce or dissolution?
- If a will appoints a spouse as executor and the marriage is later dissolved, who will administer the estate if no substitute is named?
Introduction
The effect of divorce or dissolution on wills is a key topic for SQE1. English law provides that certain provisions in a will relating to a former spouse or civil partner are automatically revoked if the marriage or civil partnership is ended by a final court order. This is primarily set out in s.18A of the Wills Act 1837 (marriages) and s.18C (civil partnerships). Following amendments introduced by the Law Reform (Succession) Act 1995, the statute treats the former spouse or civil partner as having died on the date of the final order of divorce or dissolution. The result is partial revocation: only dispositions, appointments and powers in favour of the former spouse or civil partner are revoked; the remainder of the will continues to operate. Separation or a conditional order has no effect; revocation requires the final order.
Key Term: automatic revocation
The statutory rule that certain will provisions in favour of a former spouse or civil partner are revoked by divorce or dissolution, unless the will shows a contrary intention.
Automatic Revocation: The Statutory Rule
When a testator divorces or has their civil partnership dissolved after making a will, the law treats the former spouse or civil partner as if they had died on the date of the final order. As a consequence:
- any gift or beneficial interest to the former spouse or civil partner is revoked
- any appointment of the former spouse or civil partner as executor, trustee, or guardian is revoked
- any power of appointment conferred on the former spouse or civil partner is revoked
These rules apply to both marriages (s.18A) and civil partnerships (s.18C). The will is read as if the former spouse or civil partner had died before the testator on the date of the final order. Substitution clauses that would have taken effect upon the spouse’s prior death will therefore operate. For example, if the will leaves residue “to my spouse, but if my spouse predeceases me then to my children,” the divorce or dissolution will trigger the substitution in favour of the children.
Importantly, automatic revocation does not affect property passing outside the will (e.g., the survivorship element of beneficial joint tenancies, discretionary pension lump sums paid by trustees) unless separate steps are taken to change those arrangements.
Key Term: contrary intention
A clear statement in the will that the testator intends provisions for a spouse or civil partner to remain valid even if the relationship ends.
Worked Example 1.1
A testator, Sam, makes a will leaving his entire estate to his wife, Emma, and appointing her as sole executor. They later divorce, and Sam dies without updating his will. What is the effect?
Answer:
The gift and appointment in favour of Emma are revoked by law. The will is read as if Emma had died before Sam on the date of the final order. If the will contains no substitute beneficiary or executor, some or all of the estate may pass under the intestacy rules (partial intestacy), and the court will appoint an administrator with the will annexed to administer in accordance with the will where possible and the intestacy rules where residue is undisposed.
The Scope of Revocation
The statutory revocation applies only to provisions that directly benefit or confer powers on the former spouse or civil partner. The rest of the will remains valid. Examples of provisions unaffected include:
- gifts to persons other than the spouse or civil partner (e.g., “to my children,” “to my brother,” “to charity”)
- administrative powers given to executors/trustees generally (these are not “in favour of” a spouse unless expressly conferred upon the spouse)
- gifts to a class not defined by spousal status (e.g., “to my nieces,” “to the children of my sister”) where the ex-spouse is not included by description
Where the primary disposition or appointment is revoked, substitution clauses operate as if the spouse had predeceased. If a gift was to “my wife” (status-based description) rather than naming the person, divorce may mean there is no person who fits the description at the date of death; the gift fails in any event and falls into residue. However, if the spouse is named, s.18A/s.18C still revokes the gift, treating them as having died at the relevant date.
Key Term: partial revocation
The effect that only certain provisions of a will (those relating to a former spouse or civil partner) are revoked by divorce or dissolution, while the rest of the will remains valid.Key Term: substitution clause
A clause in a will that provides for an alternative beneficiary or executor if the primary appointee cannot take (e.g., due to death or revocation).
A life interest conferred on the spouse or civil partner is a “gift to” them for s.18A purposes. On divorce or dissolution, the life interest is revoked and the remainder interest takes effect immediately (unless a contrary intention is expressed). Similarly, a specific legacy to the spouse is revoked; it does not pass to the ex-spouse nor convert to a pecuniary claim against the estate.
The Exception: Contrary Intention
The statutory revocation does not apply if the will shows a contrary intention. This must be clear and explicit on the face of the will. General expressions (e.g., “I have considered the possibility of separation”) are insufficient. Effective contrary intention typically uses language such as “I intend this gift/appointment to remain valid even if my marriage/civil partnership ends by divorce/dissolution.” A contrary intention can be:
- global (covering all gifts and appointments in favour of the spouse or civil partner)
- specific (preserving only particular gifts or only the executorship/trusteeship)
A codicil made after divorce/dissolution can also show contrary intention by republishing the will and expressly confirming the relevant gifts or appointments in favour of the now former spouse or civil partner.
Worked Example 1.2
Clare makes a will leaving £10,000 to her husband, Mark, and states: “I wish this gift to remain valid even if we divorce.” They later divorce. What is the effect?
Answer:
The gift to Mark is not revoked by the divorce, because the will contains a clear contrary intention. Mark will still inherit the £10,000.
Worked Example 1.3
Olivia made a will in 2016 appointing her spouse, Noor, as executor and giving Noor a life interest in the residue, remainder to her siblings. In 2023 she executes a codicil confirming all provisions of her 2016 will “notwithstanding any divorce or dissolution between us.” Olivia and Noor later dissolve their civil partnership, and Olivia dies.
Answer:
The codicil republished the will and contains a contrary intention. The appointment and life interest for Noor survive dissolution. Noor can take the grant as executor and the life interest operates as written.
Timing and Limitations
Revocation under s.18A/s.18C takes effect only on the making of the final order of divorce/dissolution (formerly decree absolute for marriages). A conditional order (formerly decree nisi), judicial separation, or mere separation does not trigger statutory revocation. If the testator dies before the final order, the will operates as originally written.
The statutory rule also applies where a marriage is annulled (declaration of nullity). For civil partnerships, the termination must be by final order. Revocation is confined to the former spouse or civil partner; other beneficiaries remain unaffected.
Worked Example 1.4
Jasmin and Alex separate and begin divorce proceedings. Jasmin dies before the final order is granted. Her will leaves her estate to Alex. Does Alex inherit?
Answer:
Yes. The statutory revocation does not apply to separation or pending proceedings. Without a final order, the will operates as written and Alex inherits.
Practical Consequences and Risks
Partial revocation can drive unexpected outcomes:
- If a will leaves most or all of the estate to a spouse or civil partner, and that gift is revoked by divorce/dissolution, there may be no effective gift of residue. The property then passes under intestacy (partial intestacy), potentially benefiting relatives in statutory order rather than persons the testator intended.
- If the former spouse or civil partner was appointed as executor/trustee and no substitute is named, the estate may be left without a personal representative able to take a grant of probate. In these cases, a grant of letters of administration with the will annexed will be required. The order of entitlement to such a grant broadly follows the beneficial scheme under the will (e.g., residuary beneficiaries first), and if residue is undisposed due to revocation, then the intestacy order applies.
- Where a life interest to a spouse is revoked, the remainder interests take effect immediately. Trustees must administer the trust accordingly, even if no substitute life tenant is named.
- Former spouses or civil partners may be potential applicants for financial provision (Inheritance (Provision for Family and Dependants) Act 1975) if they qualify within the statutory categories (e.g., former spouse not remarried), notwithstanding the revocation of gifts; personal representatives should consider delaying distribution for six months after the grant to mitigate liability risk.
Exam Warning If a will leaves everything to a spouse or civil partner and that gift is revoked by divorce or dissolution, the estate (or part of it) may pass under intestacy. Check for substitution clauses (including any survivorship or “fails for any reason” language) and advise clients to update their wills promptly after relationship breakdowns.
Worked Example 1.5
A will leaves residue “to my husband, Elias, provided he survives me by 30 days; if not, to Green Charity.” The testator later divorces, takes no further action, and dies.
Answer:
Elias is treated as having died on the date of the final order, so the substitution operates as if he had failed to survive. Green Charity takes the residue. There is no partial intestacy because the substitution clause catches the failure.
Worked Example 1.6
Tara’s will names her civil partner, Nia, as sole executor and residuary beneficiary. Tara and Nia then dissolve their civil partnership. Tara dies without a new will. What grant is needed?
Answer:
Nia’s appointment and gift are revoked. As there is no executor, a grant of letters of administration with the will annexed is required. Entitlement to the grant will follow the order applicable to beneficiaries under the will. If residue is now undisposed (because the gift to Nia is revoked and there is no substitution), partial intestacy arises and the r.22 Non-Contentious Probate Rules order of entitlement applies (e.g., surviving relatives per the intestacy scheme). If minors benefit under intestacy or the will, two administrators may be required.
Powers of Appointment and Trusts
Any power of appointment given to a former spouse or civil partner is revoked by divorce/dissolution. If the will creates a trust and the former spouse or civil partner was appointed trustee or granted discretionary powers, those appointments and powers are revoked unless the will shows a contrary intention. Practical points:
- If a former spouse was among several trustees, the appointment of that individual fails; remaining trustees continue. Replacement trustees can be appointed under Trustee Act 1925, s.36, or any express power in the will.
- A discretionary power given personally to the former spouse (e.g., to appoint among a class) is revoked; the trust continues with any remaining trustees and powers.
- A life interest to a spouse or civil partner is revoked, and remainder interests accelerate unless the will preserves the life interest via contrary intention.
Where an appointment of guardian is made in favour of the spouse/civil partner, it is revoked on divorce/dissolution unless the will expressly preserves it.
Foreign Divorces and Recognition
If a divorce or dissolution is obtained outside England and Wales, the effect on a will depends on whether the foreign order is recognised under English law (primarily under the Family Law Act 1986 recognition framework). If recognised, the statutory revocation applies; if not, the will operates as originally written. Recognition may turn on domicile, habitual residence, or other jurisdictional criteria. Where recognition is doubtful, advise on a new will to avoid uncertainty.
Remarriage and Revocation
Remarriage (or entering a new civil partnership) generally revokes the entire will unless the will was made in contemplation of that particular marriage or partnership (with express wording to that effect). A clause such as “This will is made in contemplation of my marriage to [X] and shall not be revoked by that marriage” can preserve the will. The exercise of a power of appointment by will is not automatically revoked by marriage unless the property would pass to the personal representatives in default of appointment. A conversion of a civil partnership into a same-sex marriage does not revoke or otherwise affect an existing will; opposite-sex civil partnerships have been permitted since 2019, with the same general effect on wills as marriages for revocation purposes.
This marriage/civil partnership revocation rule is distinct from the divorce/dissolution partial revocation rule discussed above.
Updating Wills After Relationship Breakdown
Clients should review and, where appropriate, update their wills both during proceedings and after divorce/dissolution. Key practice points:
- Ensure substitute beneficiaries and substitute executors/trustees are named, so that revocation of spousal provisions does not result in partial intestacy or administrative gaps.
- Consider whether any gifts to the spouse/civil partner should be expressly preserved (contrary intention) despite a possible future divorce/dissolution and record that intention unambiguously.
- Review property held as beneficial joint tenants; survivorship may override testamentary intentions. Sever joint tenancies where appropriate to prevent automatic devolution outside the will.
- Check non-probate transfers and nominations (e.g., life policies written in trust, pension letters of wishes) and update them where the ex-spouse/civil partner was named.
- Where an ex-spouse/civil partner may have ongoing financial needs and a claim might be sought under the 1975 Act, flag distribution timing for personal representatives (e.g., wait six months post-grant).
A fresh will is generally safer than a codicil, but a codicil is suitable for limited changes. Either instrument must comply with s.9 Wills Act formalities.
Revision Tip
Always advise clients to review their wills after divorce, dissolution, or separation. Failure to do so can result in unintended beneficiaries or intestacy. Clear substitutional provisions and substitute appointments are critical risk mitigations.
Key Point Checklist
This article has covered the following key knowledge points:
- Divorce or dissolution automatically revokes gifts, appointments, and powers in favour of a former spouse or civil partner in a will, unless the will shows a contrary intention.
- The statutory rule treats the former spouse or civil partner as having died before the testator (on the date of the final order) for the purposes of the will, so substitution clauses operate.
- The rest of the will remains valid; only the affected provisions are revoked (partial revocation). Life interests to the former spouse/civil partner are revoked; remainders accelerate.
- Separation or pending proceedings do not trigger revocation; the final court order is required. Annulment also triggers revocation.
- A clear contrary intention in the will can prevent automatic revocation (global or specific), and a codicil can republish and confirm such intention.
- If no substitute beneficiary or executor/trustee is named, intestacy or administrative difficulties may arise; letters of administration with will annexed may be required and entitlement follows the beneficial scheme or intestacy order.
- Foreign divorces/dissolutions have effect if recognised; otherwise, the will operates as written. Remarriage/new civil partnership generally revokes the whole will unless made in contemplation.
- Testators should always review and update wills after relationship breakdowns, and personal representatives should consider timing of distribution in light of potential 1975 Act claims.
Key Terms and Concepts
- automatic revocation
- contrary intention
- partial revocation
- substitution clause