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Wills and Divorce in Scotland

Divorce changes a lot in a Scottish family, and your will is one of them. Since 1 November 2016, Scots law has treated a former spouse or civil partner as if they had died before you – stripping them of any gift, executor role, or trustee appointment in your will, unless your will expressly says otherwise.

This plain-English guide explains how divorce, dissolution, and annulment affect your Scottish will, what happens to a jointly-owned house, and where separation fits in. It is written for normal Scottish families who want clarity, not jargon.

If you simply want to put a fresh, post-divorce will in place, you can make a Scottish will online here for a fixed price.

Contents

1. The short answer

Under the Succession (Scotland) Act 2016, if you divorce and then die without updating your will, your former spouse is treated as having died before you. Any gift to them falls away, and any appointment of them as executor or trustee is set aside.

The will itself is not revoked. It still operates – it simply reads as if your former spouse is no longer there. Substitute beneficiaries and substitute executors named in the will step up. This is a material change from the law before 1 November 2016, when a will in favour of a former spouse remained valid even after divorce.

2. What the Succession (Scotland) Act 2016 actually does

Section 1 of the 2016 Act applies where you have made a will benefiting your spouse or civil partner, the marriage or civil partnership is later terminated, and you then die. The statute says the former spouse is to be treated as having died before you for the purposes of the will – with one carve-out: any appointment of that person as a guardian of your children is preserved.

The rule applies only where the testator dies on or after 1 November 2016. Deaths before that date are governed by the older law, under which a former spouse could still inherit under an out-of-date will. See Succession (Scotland) Act 2016, s.1 – Legislation.gov.uk.

3. Your former spouse as executor or trustee

Most Scottish wills name the spouse as the main executor – the person responsible for gathering the estate, paying debts, and distributing what is left.

Under s.1 of the 2016 Act, that appointment falls away on divorce in the same way as a gift. Your former spouse is treated as if they had predeceased you, and any substitute executor named in the will takes over. If no substitute is named, the court process for appointing an executor-dative can become more involved – which is one of the strongest practical reasons to write a fresh will once a divorce is final.

You can override the rule, but only by saying so expressly. The 2016 Act allows the will to provide that a person is to keep the benefit or appointment “even if the marriage or civil partnership is terminated”. Without that intention written in, the statutory rule applies.

4. The house: special destinations and divorce

Many Scottish couples own their home as joint owners with a survivorship destination – the title deed says the property is held by “A and B and the survivor of them”. This is a separate legal mechanism from the will.

Section 2 of the 2016 Act deals with this directly. If a couple divorce and one of them later dies, the former spouse is treated as having died first for the purposes of the destination – so the property does not automatically pass to them.

As with the will rule, this can be overridden if the title deed expressly says succession is to be unaffected by the marriage or civil partnership being terminated. In practice, most ordinary survivorship destinations do not contain that wording, so the statutory rule applies. The full section is on Legislation.gov.uk – Succession (Scotland) Act 2016, s.2.

5. Civil partnerships and annulments

Scots law treats civil partnerships and marriages on equal terms for the purposes of these rules. The 2016 Act expressly says a marriage is “terminated” by divorce or annulment, and a civil partnership is “terminated” by dissolution or annulment.

If you are in a civil partnership and it is later dissolved or annulled, the same rules apply: your former civil partner is treated as having died before you, both for the will and for any survivorship destination on jointly-owned property. An annulled marriage is treated the same way.

6. Separation is not divorce

This is the part most people get wrong, and it matters.

Separation does not trigger the statutory rule. The 2016 Act only applies where a marriage has been “terminated” by divorce or annulment, or a civil partnership by dissolution or annulment. Mere separation – even long, formal, and with everything agreed – does not satisfy that definition.

If you are separated but not divorced, your existing will still operates exactly as written. Your spouse remains your executor, your beneficiary, and (where relevant) the survivor on the title deed of the family home. For most separated couples that is the opposite of what they would want, and writing a fresh Scottish will is the only way to change it.

7. Children, legal rights, and legitim

Children retain their right to claim legitim – a fixed share of your net moveable estate – regardless of what your will says, and regardless of whether you have divorced. This is a legal right under the Succession (Scotland) Act 1964 and cannot be defeated by testamentary provision. It applies to children of any relationship, including children from a previous marriage, and is calculated on the moveable estate after any prior and legal rights of a surviving spouse have been satisfied.

If your will makes a provision for a child, that provision is treated (unless the will expressly says otherwise) as being in full and final satisfaction of legitim. The child has to elect between the legacy and the legal right – they cannot take both. The same election applies to a surviving spouse or civil partner in respect of jus relicti or jus relictae.

8. Cohabiting partners

Cohabiting partners – couples who live together but are not married and not in a civil partnership – sit outside these rules entirely. The 2016 Act protections do not apply on the breakdown of a cohabiting relationship, because there is nothing to “terminate” in the statutory sense. A cohabitant named as executor or beneficiary in your will remains so unless you write a new one.

The only statutory route to a claim on a former cohabiting partner’s estate is under s.29 of the Family Law (Scotland) Act 2006, which allows the court to make provision for a survivor on intestacy – covered in our intestacy in Scotland guide.

9. When to write a fresh will

For most people going through a divorce or dissolution, the cleanest answer is to write a new Scottish will at the point the relationship breaks down – not at the point the divorce is final. Until the marriage or civil partnership is formally terminated, the statutory rule does not bite, and the existing will continues to favour the person you are separating from.

A fresh will lets you:

  • Replace your executor with someone you currently trust
  • Reset your beneficiaries to reflect your current circumstances
  • Name new substitutes in case someone you choose dies before you
  • Address children from any relationship clearly, including step-children

For most straightforward situations, a fresh online Scottish will written through our guided service is enough. The single will is £99 and is delivered as a Will Pack within two business days.

10. When to speak to a Scottish solicitor

An online will pack works for most people. There are situations where it is worth speaking to a Scottish solicitor first:

  • Contested financial settlement: if there are live arguments over assets
  • Trusts or business interests: property held through a trust, partnership, or company
  • Cross-border estates: property outside Scotland or recent foreign residence
  • Larger estates: approaching or above the nil-rate band
  • Children with complex needs: bespoke guardianship or long-term care drafting

If your situation is reasonably ordinary, a fixed-fee online Scottish will is usually the most sensible option. This guide is general information, not legal advice.

Quick FAQs about wills and divorce in Scotland

Does divorce automatically revoke my will in Scotland?

No. The will is not revoked. Under the 2016 Act, your former spouse is treated as having died before you, so any gift or appointment in their favour falls away. The rest of the will continues to operate.

Does separation affect my will under Scots law?

No. The statutory rule only applies where the marriage or civil partnership has been formally terminated by divorce, dissolution, or annulment. Separation does not change how your existing will operates.

What happens to our jointly-owned house if we divorce?

If the title is held with a survivorship destination, section 2 of the 2016 Act treats the former spouse as having died before you. The property does not automatically pass to them, unless the title deed expressly says succession is unaffected by the marriage ending.

Does the same rule apply to civil partnerships?

Yes. The 2016 Act expressly treats dissolution or annulment of a civil partnership the same as divorce or annulment of a marriage.

Can I keep my former spouse in my will if I want to?

Yes. The statutory rule does not apply if the will expressly provides that the gift or appointment is to apply even if the marriage or civil partnership is terminated. That intention has to be written in.

Do I need to wait until the divorce is final to write a new will?

No. You can write a new Scottish will at any time, as long as you have mental capacity. Many Scottish families find that writing a fresh will at the point of separation is the cleanest way to reset things.

Ready to put a fresh Scottish will in place?

If your situation is reasonably straightforward, you can start your Scottish will online here. The process usually takes around ten minutes, and your Will Pack is emailed to you within two business days.

If you have any questions, you can contact us – we’re here to help.