Second Marriages, Wills and Estate Planning UK

About one-third of all UK marriages are second marriages. If you are in a second marriage or planning one, you need to know about Wills, estate planning and second marriages.

Get in Touch With us Today for Will and Estate Planning Advice.

The impact of a second marriage on your Will

When you get married for a second time, your remarriage cancels your Will.

You are treated as dying without a Will if you remarry and do not make:

1. A new Will specifically said to be made in contemplation of your second marriage, or
2. A new Will made after your second marriage.

Dying without a Will is also called dying intestate.

First Wills and second marriages

If you do not make a new Will when or after you remarry, the relatives who were going to receive your estate under your first Will won’t be able to use your first Will to obtain probate and won’t receive their legacies under that Will. Instead, to get a share of your estate, they will either need to:

1. Rely on the intestacy rules on estate distribution, or
2. Bring a claim against your estate. The estate claim could bring them into conflict with your second husband or wife or other relatives receiving your estate under the intestacy rules.

The intestacy rules and second marriages

The intestacy rules say that if you die without a valid Will, your estate is distributed as follows:

1. If you are married with children (from a first or later marriages or relationships), your surviving husband or wife gets the first £322,000 of your estate and all your personal items (chattels). The rest of your estate is divided equally between your spouse and your child. If you have more than one child, the children share the remainder equally.
2. If you are married but do not have children, grandchildren or great-grandchildren, all your estate is inherited by your second husband or wife.

An example of intestacy rules and blended families

Take the example of Mike, who married Claire. It’s the second marriage for both, and they each have three children from earlier relationships and first marriages. Mike dies after only 12 months of marriage to Claire. He leaves an estate worth £900,000.

Out of the £900,000 pot, Claire receives £611,000. Mike’s three children share the remaining £289,000, with each receiving around £96,000. In her new Will, Claire is free to leave the £611,000 inheritance from Mike to her three children from previous relationships.

The complications of intestacy rules and second marriages

If you have married for a second time and have not updated an earlier Will, your Will is cancelled, and the intestacy rules apply to the distribution of your estate. The intestacy rules are rigid and inflexible. They can’t be adjusted to fit your family’s circumstances.

Although the intestacy rules cannot be changed, some people have the right to apply to the court for reasonable financial provision from the deceased’s estate because the intestacy rules did not provide them with any or sufficient money. Unfortunately, a claim against the estate can add to the anguish experienced by a family after a bereavement and pit a widow or widower against the rest of the family.

Take the example of Mike and Claire again. Claire is told three people are claiming a share of the money due to be distributed to her under the intestacy rules:

1. Mike’s former wife is bringing a claim against the estate because Mike paid her spousal maintenance. She has grounds to bring a claim as Mike’s dependent former spouse.
2. Mike’s adult son is disabled and says the £96,000 isn’t a reasonable financial provision because whilst he needs somewhere to live, Claire is due to get £611,000 and already has her own house, pension and savings.
3. Mike’s youngest daughter is going to university and says she needs financial help from her dad’s estate to support her through university.

These claims could be expensive to resolve, and it could take a long time for the estate to be distributed. Your views on whether the intestacy rules are fair may be coloured by factors such as:

1. Mike and Claire jointly owned a family home. The house is valued at one million. As Mike and Claire bought the house as joint tenants, Claire gets the house under the right of survivorship. That means she inherits Mike’s 500,000 of equity in the property and the £611,000 under the intestacy rules.
2. Mike had a few pensions at the time of his death. As he had not completed any pension nomination forms, Claire will receive the pension income and be able to draw down funds as his widow.
3. Mike and Claire signed a prenuptial agreement before their wedding. The agreement said that neither Claire nor Mike would have a claim to the other’s money if they divorced within three years of their marriage. Although the couple were only married for 12 months before Mike’s death, the prenuptial agreement does not apply as it only governs how their assets are divided if they divorce.

Writing a new Will when you are part of a blended family 

Will solicitors are told that a common reason for delay in making a Will after a second marriage is the fear of getting the contents wrong and creating unfairness between a new spouse and stepchildren or between half-siblings.

Lawyers specialising in Wills know that balancing the needs of a second spouse with those of adult or young children, as well as any extended family or charitable bequests that may have featured in an earlier Will signed before the second marriage, can be hard.

Talking to a Will solicitor can help you understand your options and provide information on how a new Will can include flexible provision and can be written in a way that caters for the needs of a second spouse and any children or other dependants.

Protecting your spouse and children

When it comes to writing second marriage Wills, the priorities of the Will maker are usually:

1. To be fair.
2. To meet the needs of family members.
3. To provide flexible provision because the needs of individual family members are likely to change between the date of the Will and the date the Will maker passes away.

The priorities can usually be met with a specialist second marriage Will. These types of Will often include:

1. Creation of a discretionary trust in the Will, or
2. A life interest in all or part of the estate for the second spouse, or
3. The second spouse is given the right to live in the family home for life or for a specified period. The timing may depend on the length of the second marriage or other family circumstances.

These provisions all create flexibility and allow a Will maker to balance the needs of their spouse, any children and wider family members.

The timing of Wills and second marriages

Ideally, if you are getting married for a second time, you need to take some legal advice on the paperwork that should be prepared before your ceremony. These documents include:

1. A prenuptial agreement.
2. A Will made in contemplation of your forthcoming marriage.
3. A Lasting Power of Attorney for financial affairs and a Health & Welfare Lasting Power of Attorney.
4. Pension nominations.
5. Life insurance nominations.

If you are in a flurry about wedding plans and don’t get around to all the recommended pre-wedding paperwork, you can sign a postnuptial agreement and a new Will after your marriage.

Wills in contemplation of marriage

A Will made in contemplation of a planned wedding needs to be signed within a reasonable timeframe of the planned ceremony. You can’t make a Will expressed to be in contemplation of marriage if you are in a new relationship and have not set a wedding date, or if you are planning a long engagement.

If you are in a serious relationship and you want to leave a new partner a legacy, your Will solicitor may be able to prepare a codicil to your existing Will.

Advice on Wills and second marriages

Our Will solicitors provide specialist advice on estate planning, second marriages and blended families. We will listen to you to understand your priorities and offer guidance on how to structure your Will and estate planning to meet the needs of your family.

Get in Touch With us Today for Will and Estate Planning Advice.