Wills and Second Marriages

1st May 2020

Author: Samuel Dale

We frequently meet with clients who are in their second marriage having had children from a previous relationship.

In such circumstances, clients are often looking to ensure that they can provide for their second husband or wife whilst also ensuring that their children are provided for.

In this article Sam Dale, Wills and Probate specialist, looks at some of the key points in this situation.

Intestacy

If you die without having prepared a Will, the intestacy rules will apply.

If you have remarried this could mean that your second husband or wife would inherit the entirety or the majority of your estate when you died. Any children from a previous relationship could inherit nothing or very little.

If your second husband or wife inherited your estate, when they in turn died (assuming no Will to the contrary is prepared) their estate would pass in accordance with the intestacy rules to their family with nothing passing to your children.

Marriage revokes a Will

It is important to note that, if you had a Will prepared prior to your second marriage, said marriage will revoke (i.e. cancel) that existing Will (unless it has a provision stating that the Will was prepared in anticipation of said marriage).

In such circumstances, unless a new Will is prepared, the intestacy rules would still apply.

Standard Mirror Wills

When clients are in their first marriage, it is not uncommon for mirror Wills to be prepared whereby the entire estate passes to surviving spouse and then, on second death, the estate passes to their children.

Whilst it is possible to prepare simply mirror Wills for those who have remarried (e.g. everything to spouse and then the estate passing between the children of both spouses), following the death of the first spouse there is nothing stopping the surviving spouse from rewriting the Will and potentially disinheriting your children.

Even if this did not happen, there is a risk that your estate may be significantly depleted by the surviving spouse due to costs of care or other debts which would significantly reduce the inheritance your children receive.

Disinherit Spouse

It may be that you feel that your spouse has adequate resources of their own and therefore wish for your estate to pass to your children from a previous relationship.

It is essential that if this is a preferred option that the risks of said spouse bringing a claim under the Inheritance (Provision for Family and Dependents) Act 1975 be considered. This is a complex area of law and you should seek legal advice with regard to the same.

Will Trusts

Often clients wish to ensure that their spouse is provided for whilst still ensuring that their children inherit from their estate. Will Trusts may assist in achieving this objective.

There are a number of options in terms of Will Trusts but the most common relate to Life Interest Trusts and Property Trusts whereby a spouse can benefit from assets within the Trust (e.g. the home) during their lifetime and, upon the death of the surviving spouse, the said assets would pass to your children or other chosen beneficiaries.

This would prevent said assets from being dissipated (e.g. on surviving spouse’s care fees) and would prevent the surviving spouse from bequeathing them to beneficiaries other than your own children.

Preparing Your Will

Whilst a simple mirror Will is unlikely to be sufficient if you are in a second marriage with children from a previous relationship, there are a number of solutions available in order to ensure that your wishes to provide for your spouse and your children are met.  Butcher & Barlow have a dedicated team who can guide you through this process and advise as to how best to achieve your objectives. Click here to meet the team.

 

In line with Government guidelines, we are now working remotely.  Sam can be contacted at sdale@butcher-barlow.co.uk or on 07760 663655.

To view Butcher & Barlow’s own working practices, please visit www.butcher-barlow.co.uk/news.