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Divorce and remarriage create some of the most complex and potentially distressing intestacy scenarios. Two critical legal rules combine: first, divorce revokes gifts to a former spouse under a will (though not the whole will). Second, remarriage automatically revokes any existing will entirely. Together, they can leave an estate distributed in ways nobody intended. The rules below are those of England and Wales; Northern Ireland is close but uses its own figures, and Scots law differs on both points.
Once a divorce is finalised — the final order (previously called decree absolute) is granted — the marriage has ended, so the former spouse is no longer a "surviving spouse" under section 46 of the Administration of Estates Act 1925 and takes nothing on intestacy. They lose all inheritance rights from that moment. (The rule that treats a former spouse as having died first is section 18A of the Wills Act 1837, and it applies to wills, not to intestacy — the outcome on intestacy is the same either way.)
Importantly, the conditional order (previously called decree nisi) is not enough. Until the final order is granted, the couple are still legally married and the spouse retains full intestacy rights. See our guide on dying without a will while separated but not divorced.
This is the critical and widely misunderstood rule: in England, Wales and Northern Ireland, marriage automatically revokes any existing will (Wills Act 1837, section 18). If someone made a will while married to their first spouse, got divorced, and then remarried without making a new will — their old will is revoked. They die as if they had never made a will at all. Section 18 does not extend to Scotland: a Scottish will is not revoked by a later marriage, although Scots law does treat a divorced spouse as having died first for the purposes of the will (Succession (Scotland) Act 2016, section 1).
The exception is a will made in expectation of marriage. Section 18(3) requires the will to show that the testator expected to marry a particular person and intended the will not to be revoked by that marriage. A general statement that the testator may marry one day is not enough — the intended spouse has to be identifiable from the will.
The consequence is stark: anyone who remarries and does not immediately make a new will is placing their entire estate in the hands of the intestacy rules — with their new spouse as the primary beneficiary.
When someone who is remarried dies without a valid will, the estate passes under the standard intestacy rules — applied to the new marital situation:
This can be particularly difficult for children from the first marriage. They share only the half of the remainder above £322,000 with any children from the second marriage — while the new spouse receives the large statutory legacy and half the remainder unconditionally.
For the intestacy formula in detail, see our guide on dying without a will when married with children. For the specific dynamics of second marriage and first-marriage children, see our guide on dying without a will with a second marriage and children from the first marriage.
The statutory legacy of £322,000 was designed to protect the surviving spouse from having to share their home and assets with the deceased's children. In a first-and-only-marriage scenario, this makes sense. In a second-marriage scenario, it can work against the interests of children from the first marriage.
Consider: a person remarries after divorce. Their estate is worth £500,000. They have two children from their first marriage and no children with the new spouse. The new spouse receives all personal chattels + £322,000 + half of the remaining £178,000 (£89,000) = approximately £411,000 plus chattels. The two children from the first marriage share only £89,000 — approximately £44,500 each. This may be far less than the deceased would have wanted.
If the family home was held as joint tenants with the new spouse, it passes to the surviving new spouse by right of survivorship, entirely outside the estate. The first-marriage children have no claim on it.
If held as tenants in common, the deceased's share forms part of the estate and is divided under the intestacy formula. The new spouse may still receive the majority through the statutory legacy mechanism, but the children would have a defined share of the remainder.
See our guide on dying without a will with a joint mortgage.
The new (second) spouse has first priority to apply for letters of administration. If they decline, the children have next priority. The former spouse has no right to apply. See our guide to applying for letters of administration.
Children from the first marriage who feel they have been inadequately provided for may be able to apply under the Inheritance (Provision for Family and Dependants) Act 1975 for additional financial provision. However, all children are already entitled under the intestacy rules, so such claims would be seeking a larger share than the intestacy formula provides — which is a higher bar to meet.
Claims must be brought within six months of letters of administration being granted.
A will made before a marriage is revoked by that marriage, and a will made before a divorce keeps working but with the former spouse treated as having died first. Events that change what an existing will does, or what the intestacy rules would do instead:
A well-drafted will for someone in a second marriage with first-marriage children might use a life interest trust — the new spouse has the benefit of the estate during their lifetime, but on their death the remaining assets pass to the children from both relationships.
Use our probate checklist.
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