Marriage is an exciting time. But it can mean that certain legalities are overlooked. In cases where it is a second marriage, the parties need to be aware of the implications this can have on their Wills and the effect this can have on their beneficiaries and dependents under inheritance laws. In many cases, a second marriage will have additional complications for inheritance purposes, particularly where there were children from the previous relationship. It is important to realise the implications that a new marriage can have since it will revoke any previous Will. Without a valid Will, intestacy laws will apply which can mean that assets are not distributed in the way that the deceased wished. These laws are fairly draconian and generally, do not take into account the nuances of modern family life. By seeking expert legal advice in the event of remarrying, can ensure that the surviving spouse, as well as children from any previous marriages, are appropriately provided for and avoid difficult arguments after you are gone.
What Happens to Your Will If You Remarry?
The current law is that when a person remarries, their previous Will is automatically revoked and no longer is valid. This means that, unless they ensure that a new Will is drawn up to state their wishes in light of the new marriage, intestacy laws will apply to their estate on their death. Not only is this costly, it often results in an outcome that is unsatisfactory to the relevant parties or honouring the wishes of the deceased.
Intestacy laws state the following:
- Where the deceased was married with children (not necessarily from that marriage), then the surviving spouse receives the first £250,000 of the estate and all personal chattels. The rest of the estate is divided equally between the spouse and any children of the deceased in equal shares to be held in trust until they are 18.
- Where the deceased is married but does not have any surviving children, grandchildren or great-grandchildren, the entire estate will pass to the surviving spouse.
This has various implications for the parties involved. It can result in the home of the married couple being jointly owned by the surviving spouse as well as the children of the deceased from a previous marriage.
Where a person has divorced but not yet remarried, then it is possible to have a Will that states their wishes in contemplation of the upcoming marriage to a specific person. It will confirm that you do not want your Will to be invalidated by the marriage. However, if this is not stipulated, then it will automatically be revoked at the time of marriage. Where someone has a partner following a divorce but does not marry them, then they cannot inherit from the deceased and may need to go to court to be provided for from the deceased's estate.
What Is the Situation If You Are Separated or Divorced?
Where people separate but remain legally married, their Wills remain valid and their spouse is entitled to inherit under the Will. If you are separated from your partner and do not wish for them to benefit from your Will, then it is important to write a new Will that confirms your wishes.
In the case of divorce, the Will is still valid but the ex-spouse can no longer benefit from the Will. This can cause a lot of complications. The result of this is that after a Decree Absolut has been issued, anything that was gifted to the ex-spouse will be dealt with as if they died on the date that the marriage legally ended. Therefore, anything they were due to inherit will actually pass onto the next beneficiary entitled to it, following the terms of the Will. Where the ex-spouse was due to inherit the entire estate, then it will be dealt with under intestacy laws as if there was never a Will in place. Under these rules, relatives are placed in order of priority and strict rules are followed. Where there are children from the relationship the estate will pass to them (presuming they survive the deceased), otherwise it will pass to parents, siblings or siblings' children.
Often spouses will name each other as executors, but after a divorce this will not be possible. If other executors were named, then they will be able to act; otherwise, the court will have to appoint an alternative (generally another family member or friend). Similarly, if the ex-spouse was named in the Will as a guardian of children or the trustee of a trust to benefit the children of that relationship, it will still not be valid if the Will was not updated after the divorce.
Are Mirror Wills a Good Idea?
Many couples have mirror Wills that reflect the wishes of the other. There are various reasons why they can lead to problems. Although a mirror Will is legally binding, there is no legal contract between the spouses. A spouse can revoke or change their Will at a later date and change their wishes, for example, if they remarry or on the death of their spouse, where they can change their beneficiaries completely. If one spouse revokes their mirror Will, this does not change the other spouse’s mirror Will from being valid. It is therefore generally recommended that each party specifies any wishes clearly in their own Will without relying on their spouse to do so in their Will.
Contact Lewis Nedas Wills and Probate Solicitors, London
Our solicitors have extensive experience in handling matters relating to the drafting of Wills. Our client base is not only domestic, but international, meaning we are well placed to advise on situations where a deceased either had assets overseas or their primary domicile was not in the UK.
We offer a tailored approach that explores and addresses the personal circumstances of our clients. Contact our Wills and Probate Lawyers today on 020 3811 6784 or complete our online enquiry form.
