People often think divorce automatically cancels a will. In Scotland it doesn't, but it does something close, and the details matter if your marriage has ended.
The rule
Section 1 of the Succession (Scotland) Act 2016 applies where your will benefits your spouse or civil partner, or names them as executor or trustee, and the marriage or partnership later ends before you die. The former spouse is then treated as having died before you.
The effect runs through the whole will, not only the gift to them. It applies to the estates of people who died on or after 1 November 2016.
Two exceptions
The first is a guardian. If your will names your former spouse as guardian of your children, that appointment still stands. The second is an express statement. If your will says your former spouse is to keep the gift or appointment even if the marriage ends, the rule doesn't apply.
What happens to the gap
A gift to a person who is treated as dead has to go somewhere. What happens next depends on what the will says. If it names a substitute, such as your children, they take it. If it doesn't, the gift can fall into the rest of the estate, or be dealt with under the intestacy rules in our guide to dying without a will.
That is rarely the result a divorced person would choose. It is the main reason to write a new will rather than rely on the default.
Separation
The rule is triggered when the marriage or civil partnership is terminated by divorce, annulment or dissolution. It doesn't mention separation. Until the divorce is final, your spouse is still your spouse, so they generally keep the rights a spouse has when you die, including legal rights over your moveable estate. Our guide to legal rights explains what those are.
If you have separated and your will leaves everything to your spouse, make a new one now, and ask a solicitor how far it can go before the divorce is granted.
What else to update
The rule covers the will only. Pension nomination forms, life insurance beneficiaries and any trust you set up with your former spouse follow their own documents. If you named your ex-spouse years ago and never changed it, that is still who the form says.
Joint ownership of the home is the third place to look. Check the title deeds and agree how the property will be dealt with as part of the divorce.
A new will also gives you the chance to deal with a new partner. They have no automatic rights unless you marry, as our guide to unmarried partners explains.
Richard arranges wills through our specialist legal partners, usually at your kitchen table. Start with our Wills page.