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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.
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Once a divorce is finalised — the final order (previously called decree absolute) is granted — the former spouse is treated as having predeceased the other person for the purposes of intestacy. They lose all inheritance rights from that moment.
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: under English law, marriage automatically revokes any existing will. 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 entirely void. They die as if they had never made a will at all.
The only exception is a will made in contemplation of marriage — a will that specifically states it is being made in anticipation of a named marriage and should not be revoked by that marriage. This must be explicitly stated in the will — a solicitor can advise on the precise wording.
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.
Anyone who has divorced, remarried, or is going through either process should make a new will immediately. Key life events that should trigger a will review:
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.
Get personalised help from Farra or use our probate checklist.
Married with children and no will? Your spouse gets £322,000 plus personal chattels plus half the remainder. Children share the other half. Full UK intestacy rules explained.
When someone dies without a will and no surviving spouse, children inherit equally. How UK intestacy rules divide the estate between children, and what to do next.
If you separate but never legally divorce, your spouse retains full inheritance rights under UK intestacy law. What this means for your estate and how to protect yourself.
Estrangement does not affect a biological child's right to inherit under UK intestacy law. An estranged child has the same entitlement as a close child. What families need to know.
When you have a second spouse and children from a first marriage, intestacy can leave your children with very little. How the £322,000 statutory legacy works and what to do.
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