Can I Exclude My Spouse From My Will?

As with any beneficiary, you are legally entitled to leave your spouse or civil partner out of your will entirely. There is no rule requiring a fixed share to pass to a spouse under English and Welsh will law, unlike the intestacy rules, which do give a surviving spouse an automatic entitlement if there is no valid will at all.

The practical limit comes from the 1975 Act, under which a surviving spouse or civil partner can apply to court if the will fails to make reasonable financial provision for them. Crucially, the standard applied to a spouse's claim is higher than for other applicants, such as children, because the court can award what a spouse might reasonably have expected on divorce, not merely what they need to get by.

For most applicants under the 1975 Act, the court asks whether reasonable provision has been made for their maintenance. For a spouse or civil partner who has not remarried, the court can go further and consider what would have been a fair settlement had the marriage ended in divorce instead of death, which is often a considerably higher standard.

This means that even a will which gives a spouse something, but very little relative to the size of the estate, can be vulnerable to challenge. A will that gives a spouse nothing at all, particularly after a long marriage, is at significant risk of a successful claim.

A common misconception is that separating from a spouse automatically removes their entitlement under your will. It does not. Until a divorce or dissolution is legally finalised, your spouse remains your spouse in law, and both the intestacy rules and the 1975 Act continue to treat them as such, regardless of how long you have lived apart.

If you are separated and wish to change your will, this should generally be done straight away rather than left until a divorce is finalised, since the risk of your existing will taking effect, or of an unwanted spousal claim, remains live throughout the separation period.

It is sometimes suggested that adding a forfeiture, or no contest, clause will deter a spouse from challenging a will. In reality these clauses have limited effect, especially where the spouse has been left little or nothing in the first place, since there is no benefit for them to lose by bringing a claim. They cannot override the protections given by the 1975 Act.

A more effective approach is usually to make some considered provision for the spouse, supported by a clear letter of wishes explaining the reasoning, rather than relying on a clause to discourage a claim that the law otherwise permits.

If you are thinking about excluding a spouse, it is worth being honest about your reasons, whether that is a long separation, a prenuptial or postnuptial agreement, provision already made outside the will, or a wish to protect assets for children from an earlier relationship. Each of these can be relevant to how a court would view a claim, but none guarantees the exclusion will hold.

Given the strength of spousal claims under the 1975 Act, this is one of the clearer cases where taking individual legal advice before finalising your will is sensible, particularly for larger estates or long marriages.