My Father Has Remarried – Should He Make a New Will?

22 February 2019

If your father has remarried but wants to ensure that his children are provided for after he dies, then it's important for him to make a new Will as his new marriage will have automatically voided any existing Will he had. Under inheritance laws, his new wife would be the main Beneficiary of his Estate and his children could be left with significantly less or nothing at all.

Remarriage and Wills – How it Works

If someone remarries and doesn't then make a new Will, it would be as though they died without a Will in place (even if they previously had one). This is called dying 'intestate' and this would happen because marriage automatically revokes any previous Will that the person had in place. The only instance in which marriage doesn't revoke a Will, is if that Will has been made in 'contemplation' of that marriage. The Will must contain the correct wording and make specific reference to the intended husband or wife.

When someone dies intestate, inheritance laws come into play to determine how their Estate (everything they owned) should be passed on. These laws are called the Rules of Intestacy and they place relatives in order of priority, with spouses or civil partners at the top of that list.

This means that, without a legally valid Will, the spouse of the deceased person would be recognised as the main Beneficiary of their Estate, and their children could be entitled to significantly less or nothing at all.

The Rules of Intestacy

This is how an Estate would be distributed under the Rules of Intestacy when the deceased is married and has children...

If the Estate is worth £250,000 or less, the deceased's spouse will be entitled to inherit the whole Estate. If the Estate is worth more than £250,000, then the deceased's spouse will be entitled to the first £250,000, plus the deceased's personal belongings.

Any amount over £250,000 will then be split 50/50, with the spouse receiving a further 50% of this, and the other 50% being divided equally between the deceased's children.

The Sideways Disinheritance Trap

A common situation that arises when parents neglect to make a new Will upon remarrying is something called the sideways disinheritance trap.

To illustrate this, let's use 'Bill' as an example. Bill remarries in his fifties and doesn't make a new Will. He has two grown up children from his previous marriage. When he dies, his Estate is valued at £260,000.

Regardless of what Bill's wishes might have been, his wife will receive the first £250,000 plus 50% of the remaining £10,000, meaning she receives £255,000 in total. The children receive the remaining £5,000 between them, so receive £2,500 each.

Bill's wife then dies without a Will 10 years later. The £255,000 that she inherited from Bill is passed directly on to her own children under the Rules of Intestacy. Bill's children are not entitled to anything as the Rules of Intestacy do not account for step children.

This is called the sideways disinheritance trap – where someone's children are accidentally disinherited because they haven't put plans in place to prevent this from happening.

It may always have been Bill's intention to leave more than this to his two children, but because he died without a valid Will in place this has been taken out of his control.

Would I Be Able to Make a Claim on His Estate?

In England and Wales, there are certain individuals who are entitled to make a claim on an Estate if they feel that they have not been sufficiently provided for. As the child of the deceased, you would be entitled to make a claim, but it would be up to the Court to decide whether you had been sufficiently provided for and, if not, what would be sufficient.

This is likely to be a long, difficult and costly process that may not resolve in the way that you wanted.

The Benefits of Making a Will

If you're in this situation and are worried about sideways disinheritance, the only person who can ensure that you receive the inheritance that is intended for you is your father. And the best way that he can do this is to make a legally valid Will after he remarries or in contemplation of an upcoming marriage, setting out exactly what should happen to his Estate upon his death.

He could also include a Trust in his Will if he wanted to give his wife a benefit in his Estate or in his property (called a life interest). This means she could continue to receive an income or live in his property for the rest of her life, with it then passing to his children upon her death.

With a professional Will writing firm such as Co-op Legal Services, your father could get his Will professionally drafted for just £150 (including VAT). Our experienced Will Writers can tailor his Will to suit his needs, ensuring that his loved ones are provided for in the way he would want.

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