WillsMarriage, Civil Partnerships and Divorce: How Do They Affect Wills?

Since the Civil Partnership (Opposite-sex Couples) Regulations 2019 came into effect on 2 December 2019, how couples can formalise their relationships have changed. Due to this, it now appears a good time to remind ourselves of what effect the creation and ending of a marriage or civil partnership will have on a person’s will.

Creation of a Marriage or Civil Partnership

If a testator forms a marriage or civil partnership, the operation of S18 and S18B Wills Act 1837 means that their will is revoked by that marriage or civil partnership. This however is subject to the will containing a contrary intention. The will won’t be revoked if it appears from the will, at the time the will was made, that the testator was expecting to form a marriage or civil partnership with a particular person and they did not intend for that will to be revoked by the marriage or civil partnership.

It should be noted here that a general contemplation of any marriage or civil partnership would not be effective, as the will must refer to them contemplating a marriage or civil partnership to a specific person.

It is currently not clear whether a will would be revoked if a testator wrote a will in contemplation of a civil partnership and later married and vice versa. In the event that either of these occur, it is advisable that the testator writes a new will following the marriage or civil partnership to ensure that their will is valid. It is also currently unclear whether a will written in contemplation of either a marriage or civil partner to a specific person would be valid or not.

A further exception to the rule that the formation of a marriage revokes a will is if same sex civil partners convert their civil partnership into a marriage under the Marriage (Same Sex Couples) Act 2013. This conversion will not revoke the testator’s will due to the operation of S18D Wills Act 1837. It currently however is not possible to convert a marriage into a civil partnership or convert an opposite sex civil partnership into a marriage.

Ending of a Marriage or Civil Partnership

The dissolution or annulment of a marriage or civil partnership does not revoke a will. However, the effect of S18A and S18C Wills Act 1837 respectively means that ending of the marriage or civil partnership causes any gifts to the spouse/civil partner and any appointments of them are treated as if the spouse/civil partner had died on the date that the marriage or civil partnership ended.

In most cases, this will be what clients wish for. However in the minority of cases where a client is making a will whilst going through an non-acrimonious end to their marriage or civil partnership and still wish to benefit their soon to be former spouse or civil partner or include an appointment of them a clause would need to be included in the will excluding the operation of S18A or S18C.

S18A and S18C do not apply where spouses or civil partners are judicially separated as the marriage/civil partnership has not been dissolved in these circumstances. Similarly, it will not apply where a marriage or civil partnership void as it is treated as never having taken place.

Chris Rattigan-Smith