Updated 29 June 2026
Quick answer
In England and Wales, you can choose to leave your spouse or civil partner out of your Will. However, this does not always mean they will receive nothing from your estate.
A spouse or civil partner may be able to make a claim against your estate if your Will does not make reasonable financial provision for them. This is why it is important to take professional advice if you are thinking about excluding your husband, wife or civil partner from your Will.
A carefully drafted Will can help make your wishes clear, reduce the risk of disputes and protect the people you want to benefit from your estate.
Can you legally leave your spouse out of your Will?
Yes, you can leave your spouse or civil partner out of your Will. In England and Wales, you have testamentary freedom, which means you can decide who you would like to inherit your estate.
This does not mean your wishes cannot be challenged. The law recognises that certain people may have a right to claim against an estate if they have not been provided for properly. This includes a surviving spouse or civil partner.
This can be an important issue if:
- You are separated but not divorced
- You are in a second marriage or civil partnership
- You have children from a previous relationship
- You want your children to inherit most or all of your estate
- Your spouse or civil partner has their own assets
- You are concerned about your estate eventually passing to someone else
- You no longer have a relationship with your spouse or civil partner
In some situations, leaving a spouse or civil partner out of your Will may be reasonable. In others, it could create a significant risk of a dispute after your death.
Can a spouse challenge a Will?
A spouse or civil partner can potentially challenge the effect of a Will by making a claim under the
Inheritance (Provision for Family and Dependants) Act 1975.
This does not mean they are automatically entitled to everything. It means the court can look at whether the Will makes reasonable financial provision for them.
If the court decides that reasonable financial provision has not been made, it may be able to change the way the estate is distributed. This could mean ordering a lump sum payment, regular payments, a transfer of property or another form of financial provision.
This can be stressful, expensive and time-consuming for everyone involved. It can also reduce the value of the estate because legal costs may be paid from estate funds.
What counts as reasonable financial provision?
Reasonable financial provision depends on the circumstances. There is no single fixed amount that a spouse or civil partner must receive.
When considering a claim, the court may look at factors such as:
- The financial needs and resources of the surviving spouse or civil partner
- The financial needs and resources of other beneficiaries
- The size and nature of the estate
- The length of the marriage or civil partnership
- The age of the surviving spouse or civil partner
- Any physical or mental disability affecting the people involved
- The contribution the surviving spouse or civil partner made to the family
- Any obligations or responsibilities the person who died had towards the applicant or other beneficiaries
For a spouse or civil partner, the court may also consider what they might reasonably have expected to receive if the marriage or civil partnership had ended by divorce rather than death.
This is why it can be risky to assume that simply leaving someone out of your Will is enough. If they were financially dependent on you, lived in a property you owned or were married to you for many years, they may have stronger grounds to bring a claim.
Why might someone want to cut their spouse out of their Will?
There are many reasons why someone may want to leave their spouse or civil partner out of their Will.
For example, they may be separated but not yet divorced. They may feel that the relationship has ended and that their estate should pass to their children or other relatives instead.
In a second marriage, they may want to make sure that children from a previous relationship inherit their estate. This can be particularly important where the family home is involved.
Someone may also want to exclude a spouse if that spouse already has substantial assets of their own. In this situation, the person making the Will may feel that their estate would be better used to support children, grandchildren or another loved one.
There may also be more personal reasons, such as estrangement, previous financial arrangements, or concerns about how money or property may be used after death.
Whatever the reason, it is important to make sure your Will is carefully drafted and supported by clear evidence of your intentions.
What if you are separated but not divorced?
Separation does not usually have the same legal effect as divorce.
If you are still legally married or in a civil partnership when you die, your spouse or civil partner may still have rights in relation to your estate. This can apply even if you have been living apart for some time.
If you have an existing Will that leaves assets to your spouse or civil partner, separation alone may not cancel that gift. If you do not have a valid Will, the intestacy rules may also still allow your spouse or civil partner to inherit from your estate.
This is why it is important to review your Will as soon as possible if your relationship breaks down. Waiting until the divorce or dissolution is final could leave your estate exposed to outcomes you did not intend.
Can divorce stop your spouse inheriting?
Divorce or dissolution of a civil partnership can affect a Will, but it does not always deal with everything in the way people expect.
Once a divorce or dissolution is final, any gift to your former spouse or civil partner in your Will is usually treated as if they had died before you. If they were appointed as an executor, that appointment will usually fail too.
However, divorce does not revoke the whole Will. The rest of the Will may still stand, which can create unexpected results if substitute beneficiaries have not been properly included.
It is also important to remember that a divorce is not final until the final order has been made. If you die before that point, your spouse or civil partner may still be treated as your spouse or civil partner for inheritance purposes.
The safest approach is to make or update your Will when you separate, and then review it again once the divorce or dissolution is complete.
Can you leave everything to your children instead?
You can leave your estate to your children instead of your spouse or civil partner, but this may increase the risk of a claim if your spouse or civil partner has not been adequately provided for.
This is a common concern in
blended families. You may want your children to inherit your estate, especially if they are from a previous relationship. However, you may also want to make sure your spouse or civil partner is not left without somewhere to live or without sufficient financial support.
In some cases, a straightforward Will leaving everything to the children may not be the best option. It could lead to conflict between your spouse or civil partner and your children after your death.
A more considered estate plan may help you balance both priorities.
Could a trust be a better option?
A
trust can sometimes help where you want to protect your spouse or civil partner while also preserving assets for your children or other beneficiaries.
For example, you may be able to give your spouse or civil partner the right to live in a property for the rest of their life, while making sure your share of the property eventually passes to your children.
This can be useful where you do not want to disinherit your spouse or civil partner completely, but you are worried that leaving everything to them outright could mean your children do not inherit later.
Trusts can be particularly helpful in second marriages, blended families and situations where you want more control over what happens to property after your death.
However, trusts must be set up carefully. The right option will depend on your family circumstances, your assets and your priorities.
How can you reduce the risk of a dispute?
You cannot always prevent someone from making a claim against your estate, but there are steps you can take to reduce the risk of a successful challenge.
These may include:
- Making a professionally drafted Will
- Explaining your reasons clearly
- Keeping a signed letter of wishes with your Will
- Reviewing your Will after separation, divorce, remarriage or major family changes
- Considering whether your spouse or civil partner should receive some provision
- Using a trust where appropriate
- Making sure your Will is signed and witnessed correctly
- Keeping evidence that you had mental capacity when the Will was made
A letter of wishes can be especially helpful where you are excluding someone who may expect to inherit. It can explain your reasoning in your own words. Although it is not legally binding in the same way as a Will, it can provide useful evidence if there is a dispute later.
Should you tell your spouse they are not included in your Will?
This depends on the circumstances.
In some families, being open about your plans can reduce the risk of shock, confusion and conflict after your death. It may give everyone time to understand your reasoning and make their own financial plans.
In other situations, telling your spouse or civil partner could cause immediate conflict or make matters worse. This may be particularly difficult where there has been separation, estrangement, financial control or family tension.
A legal professional can help you think through whether it is better to discuss your wishes during your lifetime or to leave a clear written explanation with your Will.
What happens if you die without a Will?
If you die without a valid Will, your estate will be distributed under the
intestacy rules.
If you are married or in a civil partnership, your spouse or civil partner may inherit a significant part, or even all, of your estate under these rules. This can happen even if you were separated but not divorced.
Unmarried partners do not inherit automatically under the intestacy rules, no matter how long the relationship lasted.
If you do not want your estate to pass under the intestacy rules, it is important to make a valid Will.
Speak to ELM about your Will
Leaving a spouse or civil partner out of your Will can be legally and emotionally complex. Without careful planning, it could lead to a claim against your estate and create conflict between the people you care about.
At ELM Legal Services, we can help you understand your options and prepare a Will that reflects your wishes as clearly as possible.
We can also advise on whether a trust may be suitable if you want to protect your spouse or civil partner while preserving assets for your children or other beneficiaries.
We offer a
free initial meeting to discuss your circumstances and explain how we can help.
FAQs
Can my husband leave me out of his Will?
Yes, your husband can leave you out of his Will. However, if you are still legally married when he dies, you may be able to make a claim against his estate if the Will does not make reasonable financial provision for you.
Can my wife cut me out of her Will?
Yes, your wife can choose not to leave you anything in her Will. However, as a surviving spouse, you may have the right to claim against the estate depending on your financial circumstances, the length of the marriage and the provision made for other beneficiaries.
Can a separated spouse claim against an estate?
Yes, a separated spouse may be able to claim against an estate if the marriage or civil partnership had not legally ended before death. Separation alone does not usually remove a spouse’s potential rights.
Can I leave everything to my children instead of my spouse?
You can leave everything to your children, but this may increase the risk of your spouse or civil partner making a claim against your estate. Professional advice is recommended, especially if your spouse or civil partner depends on you financially or lives in a property you own.
Can a trust protect my children’s inheritance?
A trust may help protect your children’s inheritance while still allowing your spouse or civil partner to benefit from certain assets during their lifetime. This can be useful in second marriages and blended families, but the trust must be carefully drafted to suit your circumstances.
