Wills for Second Marriages with Children

24 August 2018

Unless you make a Will stating otherwise, your second husband or wife could automatically inherit everything or the majority of your Estate when you die. If you have children from a previous relationship, they could inherit nothing, or very little.

If you want to ensure that your children benefit from your Estate when you die, you should make a new Will when you enter into your second marriage.

Marriage and Inheritance Law

If you are getting married, it's very important to know two things:

  1. Your previous Will is immediately revoked when you marry, unless it was made in contemplation of your marriage
  2. Unless you have a valid Will in place which states otherwise, your new husband or wife will stand to inherit the first £250,000 of your Estate, and half of the remaining Estate, should you die first and leave children surviving you.

The inheritance laws apply (in England and Wales) regardless of whether you are entering your first, second or third marriage. They also apply even if you have children from a previous relationship. This is because under the Rules of Intestacy, your spouse is given 'priority' over your children and so will be the main Beneficiary.

This means that if you do not have a valid Will in place when you die, your spouse could receive everything, and your children could inherit nothing or very little.

Second Marriages and Wills

In light of this, you must make certain that you review your circumstances and consider making a Will (or a new Will) when you get married.

However, you need to think very carefully about how to word your Will. Commonly, people who have recently entered into their second marriage say they want to leave everything to each other. Then when the second person dies, everything will be shared equally amongst their children.

But if you die first, how can you be sure that this will actually happen?

Please be advised that, after your death, your spouse is perfectly entitled to change their Will, remarry or have further children with a different partner. Your spouse does not have to respect any 'understanding' that you may have had between you and can remove your children as Beneficiaries from their Will. Even with the best of intentions your spouse might even incur significant debts that must be repaid during their lifetime or after their death such as care home fees which could significantly reduce your children's inheritance.

Providing for Children from a Previous Marriage

Therefore if you have children from a previous relationship, you need to think through the potential consequences of getting married or re-married. Ask yourself – do you want your children to receive an inheritance? If the answer is yes, then you need to make a Will that protects their interests.

But it may not be sufficient to make a standard Will. As mentioned above, your spouse can change their Will after your death, and is not bound to stay true to the agreement you have made.

So, what can you do? Of course, you might not want to cut your new spouse out completely. Yet you still want to ensure that your children are provided for.

This is where Trust Wills are important. There are various types of Trusts that you can put into your Will. In particular, Life Interest or Property Trusts are popular amongst those entering into second marriages. This allows for your spouse to benefit from the Trust assets during their lifetime but, after their death, the assets can be distributed to your children (or other Beneficiaries of your choosing). Importantly, because the assets are held in the Trust, they are ring-fenced away from the spouse's assets so they cannot be given away under their Will.

Wills for Second Marriages

Second marriages can create a real dilemma when it comes to inheritance, but there are potential solutions. Our professional Will writers can provide guidance, explaining how to ensure that all your loved ones are provided for after you pass away.

At Co-op Legal Services we offer fixed fee Wills and Trusts. Once we have provided you with a written quote for the agreed work to be done, that price will not change.

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