Making a Will After Separation

Unlike divorce, which triggers section 18A of the Wills Act 1837 and treats a former spouse as having died before you for certain purposes, separation has no equivalent effect. In the eyes of the law you remain married until a final divorce order is made, however long you have lived apart or however informal or formal your separation arrangements are.

This means a will written while you were together, leaving your estate or a share of it to your spouse and naming them as executor, remains fully valid and effective if you die while separated but not yet divorced. The same is true of the intestacy rules if you have no will at all: a separated spouse still inherits as a spouse.

If you are separated and do not want your spouse to inherit under your current arrangements, you need to make a new will now, because waiting for the divorce to be finalised leaves your existing will fully in force in the meantime, which can sometimes take a considerable time. This is one of the more overlooked practical steps during separation.

A new will can still remain balanced and fair, for example continuing to provide for children while reducing or removing provision for a separated spouse, but you should think through the details carefully, particularly around jointly owned property, any financial settlement being negotiated, and any potential claims under the Inheritance (Provision for Family and Dependants) Act 1975.

If you were never married, separating does not carry the same legal weight because your former partner had no automatic inheritance rights in the first place. However, if you made mirror wills or otherwise provided for each other while together, those wills remain valid and effective until changed, so a former partner named as a beneficiary or executor will continue to be entitled unless you update your will.

This is a common gap after an unmarried separation, since there is no equivalent to section 18A to automatically remove a former partner from your will.

Beyond who inherits, check who you have named as executor and guardian for any children, since a separated partner or spouse may no longer be the person you would choose, or you may want to add a co-executor for balance. Also check how any shared property is owned, since separating couples sometimes need to formally sever a joint tenancy to convert it to a tenancy in common, particularly if they want their share of the property to pass to someone other than their former partner.

If children are involved, think about how arrangements for their care and any child arrangements orders interact with guardianship appointments in your will.

If your separation involves an ongoing financial settlement, a contested divorce, children's arrangements in dispute, or a possible claim by a former spouse or dependant against your estate, involve a solicitor rather than relying on a simple will update alone.

For a straightforward situation, updating your will promptly after separating is a sensible and often urgent step to make sure your estate reflects your current wishes rather than an outdated arrangement.