We advise making a will or reviewing any existing will whenever your circumstances change significantly – and certainly in the event of engagement, marriage or divorce.

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Making a will after a second or subsequent marriage

Unless you have a valid Will that says otherwise, your new spouse is likely to inherit most if not all your assets on your death and any children you have from previous marriages may be left with little or nothing. This is the reason why there are an increasing number of cases that are being brought before the courts by children who have not been provided for under the Will of a parent.

If you have re-married, having an effective up-to-date Will is vital to protect your assets, your children and your extended family. David Roper, solicitor with Lawcomm Solicitors in Whiteley, explains what you need to consider if you have been married more than once.

The problem with a typical Will

Whilst it can be difficult discussing Wills with your partner when there are children from a previous marriage to consider, particularly when you want those children to benefit under your Will when you die, it is important that you do so. If not, you may end up with an inadequate Will that does not do what you want it to as a result.

The most common position for married couples is that the surviving spouse typically inherits everything, with the children inheriting upon the death of the survivor. The obvious risk here is that after you pass away, the surviving spouse could change their Will so that it excludes your children.

If you are in a subsequent marriage, you need to consider how you want your estate divided up when you die. How do want to ensure your spouse is provided for, while also protecting and providing for your children? What about any children you may have in this marriage?  Do you want to leave something to, for example, an ex-partner and to other extended family members from a previous marriage?

Having a professionally written Will can provide the flexibility that is needed in order to protect your estate and your long-term wishes. For instance, this could be achieved by ring-fencing some assets so that they do not pass to the surviving spouse and form a part of their estate when they pass away.

This would mean that those assets could not be redirected to someone else if your spouse decided to change their Will after your death and would pass directly to your children under the terms of your Will.

How a professional Will can benefit you

Whilst there is the option to ring-fence assets, there is no guarantee that these assets (or their proceeds) Will be readily available on your death. There are also tax implications to consider – the more of your estate that is left to your children, the more inheritance tax your estate may have to pay.

One potentially tax-efficient solution is to use a Will trust under which the surviving spouse would have the right to stay in the matrimonial home and also, to possibly receive the income from and interest on your assets when you die.  No inheritance tax would be charged on the trust assets although income tax may be payable on the income. Then, on the surviving spouse’s death, the property and assets Will pass to each of your children and anyone else named in your Will.  Only on the surviving spouse’s death might inheritance tax be payable.  

If you are about to re-marry

Unless the Will has been made in contemplation of marriage, any existing Will you have is automatically revoked upon marriage and a new Will has to be made. If you were to die first without having made a new Will, the surviving spouse Will inherit the first £250,000 of your estate entirely. It is only when the value of your estate exceeds this amount that your children would inherit anything. The amount exceeding £250,000 is split equally between your children and surviving spouse.

What you should do now

No one knows what the future holds and we advise making a Will or reviewing any existing Will whenever your circumstances change significantly – and certainly in the event of engagement, marriage or divorce.

For further information, please contact David Roper in the Private Client department on 01489 864 754 or email david.roper@lawcomm.co.uk.

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.