The short answer to this question is “No”. However, getting divorced can have a serious impact on your Will. The Succession (Scotland) Act 2016 radically changed the Act of the same name from 1964, with the impact of divorce being centre stage. So, whilst divorce does not revoke a Will in Scotland, ignoring it can have serious consequences.
What effect does divorce have on a Will?
In terms of the current law of succession, if your former spouse is an executor or beneficiary under your Will, they will be treated as having died before you. That means your former spouse can no longer succeed to your estate. However, the Act does provide the ability to expressly provide that a former spouse can be an executor and beneficiary. In such circumstances, the Will must specifically state this. There may be circumstances to retain mention of your former spouse if, for instance, you have young children who would need a guardian should you die before they reach the age of majority. The obvious choice of guardian is usually the surviving parent.
You also need to be aware that all or part of your estate can fall into intestacy if your only provision is that your former spouse should inherit your entire estate.
Dying with a Will made during marriage
If you die with a Will made during your marriage, the terms of your Will must be followed. That means if you have not divorced your spouse, if you appoint them as executor or leave any part of your estate to them, they will be entitled to whatever you have specified in your Will. This includes acting as executor.
If you made a Will during your marriage but did not appoint your spouse as executor or beneficiary, they would still be entitled to Legal Rights to your moveable estate. Your spouse is entitled to Legal Rights whether or not you have a Will and will be available to your spouse until you divorce.
Should you make a new Will after divorce?
You should make a new Will after divorce. Making a Will ensures that your estate is divided amongst your loved ones. Clearly, once you divorce, there has been a material change in your circumstances. We always recommend to our clients that if there has been a material change in their circumstances, they should review their Will. This will enable you to decide what changes need to be made to protect those you live with and love now.
Making a new Will allows you to revoke your previous Will so that no part of its conditions can have any effect.
What is the position in England?
In England and Wales, getting a divorce does not automatically revoke a will, but it can have an impact on the provisions made in the Will and the position is somewhat different to Scotland.
This means that even if you get a divorce, your ex-spouse may still inherit from your estate if they are named as a beneficiary in your Will. However, if you made a Will before you got married and did not update it after your divorce, your ex-spouse will be treated as if they had died before you. It is important to update your will after a divorce to ensure that your assets go to the people you want them to.
Specialist Wills Solicitors, Edinburgh
Partner, Peter Shand heads our Asset Protection Group and specialises in estate planning and tax. If this article has raised any questions or you would like to discuss your affairs, then please complete our contact form or call us on 0131 225 1200.
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