Divorce & your Will: what changes & what to do
Last verified: June 2026 (England & Wales)
Quick-read summary
Divorce is more than a relationship change. It can affect who inherits from you, who deals with your estate, who makes decisions if you lose capacity, and what happens to the family home.
The strongest advice is simple: do not wait until the divorce is final before reviewing your Will and Lasting Powers of Attorney.
Until the divorce or civil-partnership dissolution is final, your spouse or civil partner may still inherit under an existing Will or under the intestacy rules if you have no Will. If you lose mental capacity during separation, an old Lasting Power of Attorney may still leave the wrong person involved in decisions about your money, property, care, medical treatment or life-sustaining treatment.
Many separating couples now prefer mediation rather than a traditional court-led route. Mediation can often feel calmer, less adversarial, less expensive and easier to manage emotionally. But mediation does not remove the need to check your Will, Lasting Powers of Attorney and property ownership.
A properly prepared standard Will can deal with the immediate risk now. Once the financial settlement and longer-term arrangements are settled, you can review the estate plan again and decide whether a fuller bespoke structure is needed.
Practical checklist: key triggers to act
You should review your Will, Lasting Powers of Attorney and property ownership if:
✔️ You have separated, but the divorce is not final.
✔️ You no longer want your spouse or civil partner to inherit by default.
✔️ You have no Will and may otherwise rely on intestacy.
✔️ You want to protect children during the uncertainty of divorce.
✔️ Your spouse or civil partner is named as your attorney under a Lasting Power of Attorney.
✔️ You do not want your estranged spouse or civil partner making medical, care or financial decisions for you.
✔️ You own a home together and need to check whether it would pass automatically by survivorship.
✔️ You are using mediation and want your Will and LPA planning to fit the wider separation process.
Why timing matters
Some people delay their Will and LPA review because they assume it is better to wait until the divorce is finished.
That can be a serious mistake.
Divorce can take months. Sometimes it takes much longer. During that period, death, illness or accident can still happen. It may feel unlikely, but in real life it happens often enough that it should be planned for.
If you die before the divorce is final, your spouse or civil partner may still be treated as your spouse or civil partner for inheritance purposes. If you have no Will, the intestacy rules may apply. If you have an old Will, it may still leave assets or control of the estate in a way you no longer want.
If you lose capacity before the divorce is final, your existing Lasting Powers of Attorney may also need urgent review. A Health and Welfare LPA can cover decisions about care, medical treatment, moving into a care home and life-sustaining treatment. A Property and Financial Affairs LPA can cover bank accounts, bills, pensions, benefits, property and selling the home.
That is why the safest approach is usually to deal with the immediate risk now, then review again later if the divorce settlement changes the longer-term picture.
Wills during separation and divorce
Many people do not have a Will before they start divorce proceedings. Others have a Will, but it was made when the marriage or civil partnership was still working.
Either way, separation is a trigger point.
Until the divorce or dissolution is final, your spouse or civil partner may still benefit under your existing Will. If you have no Will, they may still inherit under the intestacy rules.
For deaths on or after 26 July 2023, where someone dies without a Will and leaves a spouse or civil partner and children, the spouse or civil partner receives the personal possessions, the statutory legacy of £322,000, and half of the remaining estate. The children share the other half of the remaining estate.
That may be completely wrong for someone who has separated but not yet divorced.
A new standard Will can give you a safer short-term position. It can appoint the right executors, say who should inherit, avoid relying on intestacy, and reduce the risk that your estate passes in a way you would not now choose.
This does not have to mean a perfect long-term estate plan on day one. Ideally, your Will should be properly estate-planned from the start. But divorce can be emotionally difficult, financially uncertain and practically exhausting. In many cases, the immediate priority is to put a clear, legally effective standard Will in place now, then revisit the detail once the settlement and long-term arrangements are known.
Divorce does not simply cancel an old Will
A common misunderstanding is that divorce automatically cancels the whole Will.
It does not.
In England and Wales, once divorce or civil-partnership dissolution is final, the Will usually continues to exist. However, gifts to the former spouse or civil partner, and appointments of them as executor or trustee, are generally treated as if that person had died on the date the marriage or civil partnership ended, unless the Will shows a contrary intention.
That can create unexpected results.
For example, John makes a Will leaving everything to Mary. If Mary has already died, the Will says everything passes equally to John’s two children.
John and Mary later divorce. John assumes the divorce has cancelled the Will, but it has not. The Will still exists. Mary may be treated as if she had already died, so John’s estate may pass to the children under the backup wording.
That might be acceptable. Or it might be completely wrong.
There may also be practical problems if Mary was named as executor or trustee, if the children are under 18, if John has a new partner, if there are step-children, or if the Will does not deal properly with the family home.
The message is simple: do not rely on the divorce rules to tidy up an old Will. Make a new Will that says clearly what you want to happen now.
Check how your home is owned
For many separating couples, the family home is the biggest asset. It is also one of the easiest things to misunderstand.
Many married couples own their home as joint beneficial tenants. In plain English, this means they both own the whole property together. If one of them dies, the property normally passes automatically to the survivor by survivorship. It does not pass under the Will.
That can matter during separation or divorce.
For example, John and Mary may be separated, but still own the home as joint beneficial tenants. If John dies before the ownership is changed, Mary may automatically receive the whole house by survivorship, even if John has made a new Will leaving his estate to his children.
One option is severance of joint tenancy. This changes the beneficial ownership so that the owners hold the property as tenants in common, usually 50/50 unless there is evidence of a different share. John’s share would then pass under his Will rather than automatically to Mary by survivorship.
Severance can be bilateral or unilateral.
Bilateral severance means both owners agree to sever the joint tenancy. That is usually cleaner and less confrontational.
Unilateral severance means one owner acts without the other owner’s agreement. This can be useful where urgent protection is needed, but it should be handled carefully, especially during separation or divorce.
Severing the joint tenancy does not decide the divorce settlement. It does not remove either person’s legal ownership. It simply changes what happens to each person’s share if one of them dies before the wider financial arrangements are resolved.
This is why a new standard Will and a check of the property ownership often need to be considered together. A Will can control assets that pass through the estate, but it cannot override survivorship if the home is still owned as joint beneficial tenants.
Lasting Powers of Attorney during separation and divorce
A Lasting Power of Attorney is not just paperwork for old age. It is part of crisis planning.
If you lose capacity because of an accident, serious illness, stroke, head injury or other sudden event, someone may need to make decisions for you.
A Health and Welfare LPA can cover decisions about daily care, medical treatment, moving into a care home and life-sustaining treatment. It can only be used when you are unable to make the relevant decision yourself.
A Property and Financial Affairs LPA can cover bank accounts, bills, pensions, benefits, investments, property and selling your home. It can be used once registered, with your permission, while you still have capacity, or later if you lose capacity.
During separation or divorce, the key question is whether the right people are still appointed.
If your spouse or civil partner is named as your attorney, you may no longer want them making decisions for you. After divorce or dissolution, their appointment may end unless the LPA says otherwise. But if there is no suitable replacement attorney, the LPA may no longer work properly.
That can leave a gap at the worst possible time.
Making new LPAs early in the separation or divorce process means you choose who would step in if you could not speak or decide for yourself.
Mediation, divorce and estate planning
Many couples now choose mediation rather than a traditional court-led route. Mediation can help people resolve arrangements in a calmer, more constructive and less adversarial way.
Will and LPA planning can sit alongside mediation. It does not need to interfere with the mediation process or the divorce settlement.
We can work with you directly and confidentially. Nothing is shared with your mediator, solicitor, former partner or anyone else unless you ask us to share it.
Where appropriate, and with your permission, we can liaise with your mediator or solicitor so that your Will, Lasting Power of Attorney and property-ownership planning fit the wider separation process.
For clients using or considering mediation, one local mediation contact is Steven Hagan at New Moon Mediation. Steven can be contacted on 07948 372869.
New Moon Mediation is an independent mediation service. Any contact with Steven or New Moon would be separate from your confidential work with Fern Wills & LPAs unless you ask us to coordinate with them.
A practical route during divorce
The best answer is usually not to wait.
A practical route may be:
- Review any existing Will.
- Decide whether you need a new standard Will now.
- Check who would inherit if you died before the divorce is final.
- Check whether any jointly owned property would pass by survivorship.
- Consider whether severance of joint tenancy is needed.
- Review any existing Lasting Powers of Attorney.
- Decide who should make health, welfare, financial and property decisions if you lose capacity.
- Coordinate with your mediator or solicitor only if you want that joined-up approach.
- Review the estate plan again once the financial settlement and long-term arrangements are known.
This approach gives you protection now without pretending that everything can be finally settled before the divorce process itself has finished.
Cases
Dawn: divorce and failing health
Dawn was going through a difficult divorce and had underlying health concerns. She was worried that if she became seriously ill before the divorce was final, her estranged husband might still be involved in life-and-death decisions.
For Dawn, the Health and Welfare LPA mattered as much as the Will. She made a new LPA appointing someone she trusted, and she made a new Will so her estate would not be left to outdated arrangements.
Mark: separated, but not yet divorced
Mark had separated from his wife, but the divorce was taking a long time. His main concern was simple: if he died before the divorce was final, he did not want his estate passing under intestacy.
We prepared a straightforward standard Will dealing with the immediate risk. Once the financial settlement was clearer, he could then decide whether a fuller estate-planning structure was needed.
Simon: acting before the settlement
Simon did not want to wait until the divorce settlement was complete. He knew the final division of assets might change, but he also knew that waiting created risk.
He made a new Will and reviewed his LPAs immediately. After the divorce, the documents could then be reviewed again against the final settlement.
John and Mary: the jointly owned home problem
John and Mary separated. John made a new Will leaving his estate to his children. But John and Mary still owned the home as joint beneficial tenants.
If John died while the home was still owned in that way, Mary could receive the whole property automatically by survivorship. John’s Will would not control that part of the property.
That is why checking property ownership can be just as important as making the Will.
Divorce FAQs
Does divorce cancel my Will?
No. Divorce does not automatically cancel the whole Will. Once the divorce is final, gifts to your former spouse or civil partner, and appointments of them as executor or trustee, are generally treated as if they had died, unless the Will says otherwise. Until the divorce is final, they may still benefit under the existing Will.
What happens if I die before the divorce is final?
If you are still legally married or in a civil partnership, your spouse or civil partner may still inherit under your existing Will or under the intestacy rules if you have no Will. That is one of the main reasons to review your Will as soon as separation happens.
What is the current intestacy position if I am married with children?
For deaths on or after 26 July 2023, if you die without a Will leaving a spouse or civil partner and children, the spouse or civil partner receives your personal possessions, the statutory legacy of £322,000, and half of the remaining estate. The children share the other half of the remaining estate.
Can my spouse still make decisions for me under an LPA?
Possibly, depending on the wording of your LPA and whether the divorce is final. If your spouse or civil partner is still named as attorney, you should review the LPA urgently. If their appointment ends after divorce and there is no suitable replacement, the LPA may no longer work properly.
Can a Health and Welfare LPA include life-sustaining treatment?
Yes, if it is made and completed correctly. A Health and Welfare LPA can cover medical care, care arrangements and life-sustaining treatment. It can only be used when you are unable to make the relevant decision yourself.
What is severance of joint tenancy?
Severance of joint tenancy changes the beneficial ownership of a jointly owned property from joint tenants to tenants in common. This means each owner has a share, often 50/50, and that share can pass under their Will instead of automatically passing to the other owner by survivorship.
Can severance be done without the other owner agreeing?
Yes, severance can be unilateral. That means one owner can act without the other owner’s agreement. However, it should be done carefully, especially during separation or divorce, because it affects what happens on death and may sit alongside wider financial negotiations.
Does severing the joint tenancy decide the divorce settlement?
No. Severance of joint tenancy does not decide the divorce settlement and does not remove either person’s legal ownership. It changes what happens to each person’s beneficial share if one of them dies before the wider financial arrangements are resolved.
Should I wait until mediation or the financial settlement is finished?
Usually, no. The settlement may affect the longer-term estate plan, but waiting can leave a dangerous gap. A new standard Will, LPA review and property-ownership check can protect your position now. The plan can then be revisited when the settlement is final.
Will you speak to my mediator or solicitor?
Only if you ask us to. Your work with Fern Wills & LPAs is confidential. We will not share your information with your mediator, solicitor, former partner or anyone else unless you give permission.
General information note
This article is general information only, not individual legal advice.
Divorce, property ownership, Wills, LPAs and financial settlements can interact in complicated ways. The right answer depends on your family, assets, home ownership, children, existing documents and the stage of the divorce process.
If you are separating, divorcing or using mediation, we can help you decide what needs dealing with now and what can safely wait until the wider settlement is known.
Next steps
If you are going through separation or divorce, do not wait until the final order before reviewing your Will and Lasting Powers of Attorney.
Fern Wills & LPAs can help you:
✔️ review your existing Will;✔️ make a new standard Will for the immediate risk;
✔️ review or replace Lasting Powers of Attorney;
✔️ check whether your home is owned as joint tenants or tenants in common;
✔️ consider whether severance of joint tenancy may be needed;
✔️ coordinate with your mediator or solicitor, but only with your permission.
Contact Fern Wills & LPAs to talk it through.
