How to Disinherit an Estranged Spouse

It is a common misconception that if you are separated from your husband or wife, they no longer have a right to your estate. Unfortunately, under English law, separation makes absolutely no difference to inheritance rights.

Until you are legally divorced (meaning you have your Decree Absolute or Final Order), your estranged spouse is still treated exactly the same as a happily married one. This means that if you die without taking action, they could inherit everything you own.

Why You Must Make a Will Immediately

The only effective way to stop an estranged spouse from inheriting under the rules of intestacy is to make a valid will. By writing a will, you override the default rules and can legally specify exactly who you want to inherit your assets—whether that's your children, a new partner, friends, or a charity.

Without a will, you have no voice. The law simply follows the flowchart of intestacy, which prioritises spouses above almost everyone else.

Can I Completely Disinherit My Spouse?

In England and Wales, you have "testamentary freedom," which means you can generally leave your estate to whomever you choose. However, there is a catch: the Inheritance (Provision for Family and Dependants) Act 1975.

This Act allows certain people—including spouses and ex-spouses who have not remarried—to make a claim against your estate if they feel they haven't been left "reasonable financial provision."

While you cannot 100% prevent a claim being made, you can significantly weaken their case and strengthen your own wishes by taking specific steps.

Steps to Protect Your Estate

1. Write a New Will: This is the non-negotiable first step. Explicitly state who your beneficiaries are.
2. Include an Exclusion Clause: Your will should acknowledge that you have a spouse but state clearly that you are choosing not to leave them anything. This shows it wasn't an oversight.
3. Write a Letter of Wishes: This is a separate, private document stored with your will. In it, you explain why you have disinherited your spouse (e.g., "We have been separated for 10 years and financially independent"). If your will is challenged in court, this letter provides evidence of your reasoning.
4. Sever the Joint Tenancy: If you own a home jointly with your spouse as "Joint Tenants," it will automatically pass to them when you die, regardless of what your will says. You must change this to "Tenants in Common" to leave your share to someone else.

What About Divorce?

Once your divorce is finalised (Decree Absolute), your will is treated as if your ex-spouse has died. They will no longer inherit (unless you write a new will specifically including them).

However, divorce can take months or years. Do not wait until the divorce is final. If you pass away during the divorce proceedings, you are still legally married, and they will inherit. It is safer to update your will as soon as you separate.

Summary

Disinheriting a spouse is a significant legal step, but for those who are separated, it is often necessary to ensure fairness for the people you actually care about.