Your will after divorce in Ireland: what changes, what does not, and the section 18 claim

Most people assume that a divorce deals with their will. In Ireland it does not. The decree ends the marriage and removes your former spouse's automatic rights in your estate, but it leaves every word of your will exactly as you signed it. If that will names your former spouse as beneficiary or executor, it still does. This guide explains what changes, what does not, the six-month claim a former spouse can still bring, and the other documents to review.

What a divorce does not change

Section 85 of the Succession Act 1965 sets out how a will is revoked: by the testator's later marriage or civil partnership, by another valid will or codicil, by a written declaration of revocation executed like a will, or by destroying it with intent to revoke. Divorce is not on the list. The law of England and Wales treats a former spouse as having died on the date of the divorce for the purposes of the will (Wills Act 1837, section 18A), which is where much of the confusion comes from. Irish law has no such rule.

The consequences are concrete:

• A gift of the house, a sum of money or the residue of your estate to "my wife Mary" or "my husband John" remains a gift to that person after the divorce.
• If the will appoints your former spouse as executor, or as trustee of a fund for your children, they remain executor or trustee.

Nothing happens to any of this until you make a new will or revoke the old one. A new will is a document a solicitor draws; this site does not provide one.

What a divorce does change

The Courts Service puts it in one line: "a divorce affects your right to automatically have a share in the estate of your former spouse or partner on their death." Both automatic rights in the Succession Act depend on being a spouse at the date of death, and a divorced person is not one.

The legal right share. Section 111 gives a surviving spouse a right to one-half of the estate where there are no children and one-third where there are, regardless of what the will says. After divorce that right is gone.

Intestacy. Section 67 gives a surviving spouse the whole estate where there are no children and two-thirds where there are. After divorce a former spouse takes nothing on intestacy.

The position after divorce is therefore lopsided: the law has removed your former spouse's entitlements but left intact anything you chose to give them. If you want them to have nothing, you must say so in a new will. If you want them to continue to receive something, confirm it in a will made after the divorce so nobody later argues it was an oversight.

The section 18 claim

There is one route by which a former spouse can still reach your estate without being named in the will. Section 18 of the Family Law (Divorce) Act 1996 lets a former spouse apply to the court for provision out of the estate of the other where proper provision was not made for them during their lifetime. The limits are strict:

• the application must be made not more than 6 months after representation is first granted;
• the court cannot make an order in favour of a former spouse who has remarried or entered a civil partnership;
• the provision cannot exceed in total the share the applicant would have had in the estate had the marriage not been dissolved.

Section 18(10) is the part to know. On granting the decree, or at any time afterwards, the court may order that either or both spouses shall not be entitled to apply under section 18 if it considers that just. Where the divorce is a clean break, this order is what closes the door on the estate. If your divorce was years ago and no such order was made, it can still be sought.

Judicial separation and separation agreements

A judicially separated couple are still married, so each remains a spouse for the Succession Act. The legal right share and the intestacy entitlement survive unless something is done about them.

Section 14 of the Family Law Act 1995 lets the court, on or after granting a decree of judicial separation, make an order extinguishing the share either spouse would otherwise take in the estate of the other as a legal right or on intestacy. It can do so only where adequate and reasonable financial provision exists or can be made by the other orders in the Act, where the court has refused to make a support order for that spouse, or where it is satisfied it would not make one if asked. The process is described in Judicial separation in Ireland: grounds, process, orders and cost.

A separation agreement usually contains a mutual renunciation of succession rights. Section 113 of the Succession Act allows the legal right to be renounced in writing by a spouse after marriage and during the lifetime of the other, which is what that clause does. Whether it also deals with intestacy and any later section 18 claim depends on the drafting; see Separation agreements in Ireland: what a deed of separation covers and why there is no template here. Neither a separation order nor an agreement changes the will itself.

Remarriage revokes a will

The one event in this story that does revoke a will is marriage. Under section 85, a later marriage or civil partnership revokes any earlier will unless the will was made in contemplation of that marriage. A person who divorces, makes a careful new will leaving everything to the children of the first marriage, and then remarries without making another will has no will at all. The estate passes on intestacy, two-thirds to the new spouse and one-third to the children under section 67. If a second marriage is in prospect, the will made after the divorce needs to be made in contemplation of it, or remade immediately after it.

The other documents to review

Enduring power of attorney. If you made an enduring power naming your spouse as attorney, the divorce does not of itself appoint someone else. Enduring powers are governed by Part 7 of the Assisted Decision-Making (Capacity) Act 2015 and registered with the Director of the Decision Support Service; the Act provides for varying and revoking them. Check who you have named.

Pension death benefits. Death-in-service benefits and the death benefits under personal pensions and PRSAs are typically paid at the trustees' or provider's discretion, guided by a nomination or expression-of-wish form. Divorce does not update that form. A pension adjustment order made in the divorce (Pension adjustment orders in Ireland: how a court splits a pension on separation or divorce) may already have given your former spouse a share of certain death benefits; the rest is yours to direct.

Life assurance. A policy written in trust for, or assigned to, your spouse is unaffected by the divorce. Check it.

Jointly owned property and accounts. Property held as joint tenants passes to the survivor outside the will, whatever the will says.

Guardians for your children. Your will can appoint a testamentary guardian to act after your death, alone or with the surviving parent, who remains a guardian.

Where this leaves you

Review the will, the enduring power, the pension nominations and the policies together, and ask whether the divorce orders included a section 18(10) order. The maintenance and pensions tool lets you screen each of your pensions, including death-in-service benefits, for what the divorce dealt with and what still needs a nomination. Drafting the new will is a solicitor's job; the solicitor page explains how to be put in touch with one who handles wills alongside family law.