Just Married? You Might Have Accidentally Voided Your Will
18 January 2019
Did you know that getting married automatically revokes any Will you previously had in place? Worryingly this is not a widely known fact and, as a result, it's estimated that around 1.5 million people in the UK could have unknowingly made their Wills void by getting hitched.
What Happens to a Will upon Marriage?
Under the law in England and Wales, entering into a marriage will automatically void any existing Will that you or your new spouse already had in place. The same is true if you remarry following a divorce.
This means that if either you or your new spouse then dies without making a new Will, your Estate will be dealt with as though you died without a Will in place at all (called dying 'intestate').
The only circumstances in which marriage does not revoke a Will is if the Will makes reference to the intended marriage. Specific wording will need to be used which states that the Will has been made in 'contemplation' of marriage and the person that you intend to marry needs to be referenced by name. It's not enough to simply say that you might intend to marry an unnamed person at some point in the future. This is one of the reasons why we would always recommend seeking professional legal advice when making a Will, to ensure that all of these details are picked up.
Dying Intestate and the Rules of Intestacy
If you die intestate then a set of inheritance laws called the Rules of Intestacy will determine who inherits what from you, regardless of whether this aligns with your wishes. Under these rules, if you are married and have children, then your spouse will be entitled to the first £250k of your Estate. If your Estate is worth more than £250k, then anything over this will be split 50/50, with your spouse receiving 50% of this and your children receiving equal shares of the other 50%.
So, for example, say you have 2 children and your personal assets are worth £350k when you die. You don't have a Will in place, so the Rules of Intestacy come into play. Your spouse will receive the first £250k of this, and then 50% of the remaining £100k. So they'll receive £300k in total. The other £50k will then be divided equally between your children, so they'll get £25k each.
This may not have been what you wanted, but unless you've made a new Will that is legally valid, then your wishes won't be acknowledged by the law.
Remarriage and the Sideways Disinheritance Trap
According to the most recent marriage statistics from the Office of National Statistics, over 20% of people getting married have been married before.
For those that have children from a previous relationship and then remarry, failing to make a new Will can have devastating consequences. As you can see, when you get married, the Rules of Intestacy prioritise your spouse as the main Beneficiary of your Estate – even if they're not the parent of your children.
If the two of you have children together, then this may not be an issue as your spouse is likely to pass their share down to the children when they die anyway. The issue lies where you have children from a previous relationship, who are not related to your new spouse.
After you die, your spouse will inherit the bulk of your Estate under the Rules of Intestacy, and they will be under no obligation to then pass this onto your children when they die, meaning that your children could be left with little or nothing at all. This is called the sideways disinheritance trap. The best way to ensure that children from a previous relationship are adequately provided for is to make a Will that names them as Beneficiaries.
There is also the option of including a Trust in your Will, which can provide for your spouse during their lifetime but ultimately pass on all or part of your Estate to your children. For example, say you own your home in your sole name. After you die, you want your spouse to be able to continue living there, but when they die you want the property to be passed on to your children. By making a Trust Will, you can do exactly this, by giving your spouse a life interest in the property and then gifting it to your children on your spouse's eventual death.