Will Written Before Marriage

If you or your husband or wife has a Will written before your marriage then what is its status after your marriage or civil partnership? It is best not to make assumptions and think that the Will either remains valid or that it is scrapped and invalid.

Wills are governed by private client law and it is easy to get caught out. If you are the one who is left as a widow or widower assumptions can have devastating financial consequences for you. If you are a child from a previous marriage and your parent has passed away there can be equally devastating consequences from a parent not realising that they needed to make a new Will to protect you.

In this blog, our Will solicitors look at what happens if you write a Will before your marriage or civil partnership.

For expert Will and estate planning advice call our team or complete our online enquiry form.

Wills written before marriage

A Will can be written before marriage and be valid after the wedding BUT the Will must say it is being made in contemplation of marriage.

When you make a Will in contemplation of marriage you include a clause saying the Will has been made in the full knowledge of your pending marriage to a specified person and that your marriage should not make the Will invalid.

A Will made in contemplation of marriage is allowed under Section 18 of the Wills Act 1837. Since 2005 this also includes civil partnerships.

Our private client solicitors recommend that you take specialist advice if you are thinking of making a Will in contemplation of marriage because if you get the wording wrong your Will could be invalidated by your subsequent marriage or civil partnership.

The 1837 Wills Act says that you must:

• Name the person you are marrying – you can’t say when signing a Will at age 18 that if you get married at some point in the future your brother won’t get your estate and instead most of your estate will go to any future husband or wife
• The marriage or civil partnership must take place within a reasonable period. That’s normally at most a year. A long engagement or an engagement without a set ceremony date won’t work for you

If you made a Will in contemplation of your marriage but you are now not sure about its validity our Will solicitors can advise you on whether you need a new Will. For an appointment call our team or complete our online enquiry form.

Wills invalid after marriage

If you signed a Will before your marriage or civil partnership and it wasn’t said to be made in contemplation of your marriage or if it didn’t comply with the 1837 Act then the Will is invalid. That’s the case even if your Will left your estate to your fiancé.

If there is no Will (because your old Will was revoked by your marriage or civil partnership) then your estate will be distributed under intestacy rules. This may mean that your husband or wife will get a lot less than you expected because of the way that intestacy rules work. It will also mean that any gifts to family, friends or charity won’t be valid as your earlier Will was revoked by your marriage. Instead, other family members may end up sharing your estate with your husband or wife. That’s the case whether you were married for ten months or ten years at the date of your death.

As well as your Will being invalid after marriage any careful tax and estate planning may be worthless. That means your estate could end up paying more in inheritance tax.

Why the intestacy rules may not work for your family

If you are getting married you need to consider:

• Signing a prenuptial agreement
• Sorting out insurance and pension nominations
• Writing a new Will in contemplation of your marriage or civil partnership or making an appointment to see a Will solicitor after your wedding

If you die before your spouse or civil partner and there is no valid Will because your marriage revoked your earlier Will, the intestacy rules will apply. Under the current regime, your spouse or civil partner will either get all your estate or part of it. The rules say:

• If the deceased was married or in a civil partnership and has no children, all their estate goes to their spouse or civil partner
• If the deceased was married or in a civil relationship and has children, the first £322,000 of their estate and any personal possessions goes to their spouse or civil partner. Anything over £322,000 is then divided. The spouse or civil partner receives 50% of the balance over £322,000. The deceased’s children are entitled to the other 50% divided equally between them. This rule applies even if the deceased is estranged from adult children or an adult child is wealthy and has no need for an inheritance. However, if the deceased had step-children then under the law they don’t qualify as children so won’t get anything under the intestacy rules

Even if you think that the intestacy rules will result in fair estate provision you should still make a Will or a new Will after your marriage or civil partnership because:

• The intestacy rules could change
• Your assets could increase in value. For example, property prices or your receiving an inheritance
• You may want to cover what happens if you have children in the future. For example, leaving money in trust for them or appointing a testamentary guardian
• All your assets may not form part of your estate and be left under the intestacy rules. For example, if you bought a property jointly with a sibling as joint tenants then your share of the property will pass under the right of survivorship to your sibling and not under the intestacy rules
• You want to reduce the risk of your estate being the subject of an inheritance challenge as your spouse or child is unhappy with what they are receiving under the intestacy rules or a family member says the intestacy rules don’t make reasonable financial provision for them

With the help of a specialist Will solicitor making a Will in contemplation of your marriage or after your marriage or civil partnership is straightforward – even where there are complex family dynamics or significant assets. Our private client advisors can focus on your goals and draw up a Will that does what you need it to do by reflecting your wishes and protecting all your loved ones.

For expert Will and estate planning advice call our team or complete our online enquiry form.