Making a Will is an important step to help ensure that the people, and perhaps charities or other organisations, we love or are significant to us receive what we want them to after we die.
Often a ‘life event’ will be the prompt in getting us to think about making or updating our Will. This may be buying a property, getting married or entering a civil partnership, having children/grandchildren, relationship breakdown or remarriage/re-entering a civil partnership.
This blog looks specifically at Wills and second marriages/civil partnerships.
What happens if I have a Will and I then get remarried or enter another civil partnership?
Usually, a Will is revoked when you get married or enter a civil partnership.
The exception is where the wording of the Will says that it is made in contemplation of marriage or a civil partnership to your intended spouse/civil partner. If you go on to marry or enter a civil partnership with that person, then (subject to the Will having the correct wording and being a valid Will at the time it was made, e.g. correctly signed etc) your Will will still remain in force. You should, however, check that it still meets your requirements, because if it was made a while ago, the people you want to benefit may have changed, for example, you may now have children with your new spouse/civil partner.
If the ‘contemplation of marriage’ exception does not apply, then your Will is revoked (cancelled) automatically on the date of your marriage or civil partnership, which means that if you do not make another Will, the ‘intestacy rules’ (see below) would apply to what you own at the date you die.
What happens if I do not have a Will and I then get remarried or enter another civil partnership?
In these circumstances the ‘intestacy rules’ apply (see below).
What happens to any assets I own jointly when I die?
Joint assets will usually pass to the surviving joint owner regardless of what a Will says. One exception to this is where an asset is owned jointly as ‘tenants in common’. This is where each joint owner owns a separate share of the asset, for example, a property. It is unusual, but not impossible, for a bank/building society account to be owned jointly as tenants in common. When someone dies, assets owned as ‘tenants in common’ will pass under the terms of their Will, or if there is no valid Will, they will pass under the ‘intestacy rules’.
What are the intestacy rules for people who are married or in a civil partnership?
The intestacy rules set out who inherits when there is no valid Will. The intestacy rules are complex and there are exemptions which need to be considered but very broadly, if the spouse/civil partner who died did not have any children of their own (whether natural or legally adopted, but not stepchildren), then their surviving spouse/civil partner will inherit their estate.
However, if the spouse/civil partner who died did have children of their own (natural or legally adopted), then the estate will be shared between the surviving and the children of the deceased.
This may not be the result you want and can cause complexities for the surviving spouse/civil partner in administering the estate. Also, depending on the size of the estate, the application of the Intestacy rules can mean that Inheritance Tax is payable when it might otherwise be avoided.
How can I balance the needs of my spouse/civil partner and my children when I die?
This can be difficult, but a Will can help achieve a balance in making sure your spouse/civil partner and your children are all provided for.
A simple mirror Will leaving everything to the survivor and then to your children has various risks, for example, the surviving spouse/civil partner may change their Will to disinherit your own children or the assets may be depleted by the surviving spouse/civil partner, for example in care fees.
One option to help create a balance could be to create a trust over the share of the property you own. This trust would give the surviving spouse/civil partner somewhere to live during their lifetime but would be passed on to your children (or other beneficiaries of your choice) after your spouse/civil partner’s death.
Are there any other reasons why should I have a Will?
A Will also allows you to choose Executors, who are the people who will deal with the practical steps, like arranging a funeral and contacting the asset holders.
You can also appoint Guardians for your children who are under 18.
A spouse/civil partner can bring a claim to the court where they consider that reasonable financial provision has not been made for them under a Will or intestacy. Having a carefully considered professionally drawn Will in place can help reduce the risk of future claims occurring.
Providing for each other in a second marriage and where there are blended families is complex. Our experienced lawyers can help navigate the options available to you.
If you have any questions or would like to arrange a call or meeting, please get in touch with our expert private client lawyers.
