Should I make a Will (and LPA) during divorce?
Author: Chris Watts, Will Writer — Fern Wills & LPAs
Last verified: 5 September 2025 (England & Wales)
Quick-read summary
- The best practice is always to have a carefully drafted Will that fully reflects your wishes, including trusts if they are needed to protect children or assets.
- The reality is that many people going through divorce don’t have the mental bandwidth or financial clarity to finalise every detail straight away.
- A practical second-best option is an “emergency Will” that revokes your old one and ensures you’re protected now. Once the divorce settlement is finalised, you can revisit and refine it.
- The same applies to Lasting Powers of Attorney (LPAs). If you are separated but still legally married, your spouse may still have control over life-changing decisions unless you take action.
Practical checklist: Key triggers to act
✔️ You have separated but divorce is not yet final.
✔️ You no longer want your spouse to inherit by default.
✔️ You want to protect children during the uncertainty of divorce.
✔️ You do not want your estranged spouse making medical or financial decisions for you.
✔️ You do not yet have a Will or LPA, and this is the moment to put them in place.
✔️ You are considering trusts or more detailed arrangements but need breathing space for now.
What to consider
1. Wills
- Many people don’t have a Will at all before divorce. This is the time to put one in place.
- If you already have one, your current Will remains valid until specifically revoked.
- If it benefits your spouse, that stands until divorce is final.
- A judge can take your Will into account during divorce proceedings, and under the Inheritance (Provision for Family and Dependants) Act 1975, certain people (including an ex-spouse) may be able to claim against your estate.
- For some clients, excluding someone is just as important as including someone. A clear Will makes your intentions explicit and reduces risk of dispute.
- An “emergency Will” provides immediate protection. The best option is to draft a full Will (with trusts if needed) right away, knowing it can always be reviewed after divorce.
“Separation has no legal effect — until your divorce is final, your spouse may still inherit.”
2. LPAs
- Many people have never made LPAs before. If that’s you, divorce is the time to act.
- Without them, if you lose capacity, your estranged spouse may be first in line to step in.
- If you already have LPAs naming your spouse, they remain valid until formally revoked.
- In acrimonious divorces, this can leave them with serious control over your affairs.
- Examples:
- Health & Welfare LPA: they could decide whether you receive life-sustaining treatment.
- Property & Finance LPA: they could sell your property or access your accounts.
- You can revoke old LPAs and appoint trusted family members, friends, or professionals instead.
“If your spouse is your attorney under an LPA, they may still decide on life-sustaining treatment or even sell your home.”
3. Timing
- Best option: Do it now — a properly drafted Will (with trusts if needed) plus updated LPAs.
- Option B: If you can’t face the full detail yet, put an emergency Will and replacement LPAs in place now. Refine once the divorce settlement is finalised.
- Remember: Wills and LPAs should be reviewed regularly anyway. Divorce is one of the key triggers to update them.
How this works in real life
We helped Dawn, who was going through a difficult divorce and had underlying health conditions. She knew she might be hospitalised before the divorce was finalised, and she dreaded her estranged husband making life-or-death decisions for her. She also had young children, and although the Will couldn’t override her husband’s automatic parental rights, we included a detailed Letter of Wishes setting out why another family member should be considered as guardian.
- For Dawn, the Health & Welfare LPA was as important as the Will itself.
- We revoked her old LPA and appointed her sister instead.
- Her Will was drafted urgently, ensuring her children were protected, and supported by the Letter of Wishes to guide a future judge.
We also supported Mark, who had separated from his wife but the divorce was dragging on. His main concern was that, if he died before it was finalised, his wife would inherit under intestacy rules.
- We prepared a straightforward Will leaving everything to his two sons.
- He later updated the Will to include tax-efficient trusts once his settlement was agreed.
Finally, we helped Simon, who decided not to wait. He wanted everything done straight away — full Will, trusts, and updated LPAs — while he still had funds available, knowing assets might later be divided 50/50.
- We drafted a comprehensive Will with protective trusts for his children and replaced his LPAs at the same time.
- After his divorce was finalised, we reviewed the documents. Nothing significant had changed, and the original Will stood exactly as drafted.
- His comment to us was: “I wish I’d done this sooner — it gave me peace of mind during a very stressful time.”
“The best option is to do it now — you can always refine your Will later, but you can’t go back after it’s too late.”
FAQs
Does separation affect my Will?
No. Separation has no legal effect. Your spouse may still inherit or act as executor unless you update your Will.
Does divorce cancel my Will?
Only once the decree absolute is granted. At that point, gifts to your ex and their appointment as executor are usually treated as if they had died.
Can my ex still make medical or financial decisions for me?
Yes. If they are your attorney under an LPA, they still hold that power until you revoke and replace it.
Should I wait until after my divorce to make a Will?
No. If you die mid-divorce, your spouse may inherit. The safer option is to make a Will now.
What if I want trusts for my children?
It is best to include them in your Will now, so they are in place immediately. Your Will can always be updated and refined later once your divorce settlement is clear.
“Divorce only cancels your Will once the decree absolute is granted.”
Optional Technical Notes (for those who want the detail…)
- Wills Act 1837: marriage revokes a Will; divorce treats the ex-spouse as if they had died (sections 18 & 18A).
- Intestacy rules: If you die without a Will before divorce, your spouse is entitled to at least the statutory legacy (£322,000 as of 2025) plus half of the remainder.
- Inheritance (Provision for Family and Dependants) Act 1975: allows certain people (including an ex-spouse) to make claims against your estate if reasonable provision has not been made.
- LPAs (Mental Capacity Act 2005): an LPA is only automatically revoked on divorce if your spouse is the sole attorney. If they are one of several, they remain unless you actively revoke them.
Next steps
- If you are separated or in the middle of divorce, the safest option is to make or update a Will now and review your LPAs.
- Once your divorce is complete, revisit your Will to refine details or add further trusts if required.
- At Fern Wills & LPAs, we can prepare urgent Wills and LPAs for peace of mind, and we offer discounted updates for clients who later need a revised Will once their divorce is final.
Sources & further reading
- Gov.uk — Making a Will
- Gov.uk — What happens if someone dies without a Will
- Office of the Public Guardian — Lasting Power of Attorney
- Legislation.gov.uk — Wills Act 1837; Mental Capacity Act 2005
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