Is It Your First, Second or Third Time?
I’m talking about marriage, as many couples nowadays are on their second or even third time around with children from previous relationships.
In these circumstances, it would be normal for each spouse to have the desire that their share of the estate should ultimately go to their own children.
When it comes to writing your Will, it’s important to understand the impact and I’d like to discuss this with you from two different viewpoints:
- A divorcee. Specifically, one with children from a previous marriage.
- Re-marriage. A surviving partner marrying after the death of their spouse.
Many couples are keen to just get their Wills written and tend to rush into drawing up what is known as a Mirror Will. This is where each person leaves their estate to each other on first death, and finally, to their children on second death.
However, a straightforward mirror will like this doesn’t protect the children, particularly if it’s a second or third marriage.
Here’s three examples:
- You are sadly going through a divorce with your second wife/husband and have children from your first marriage. You pass away before your decree absolute is through and you haven’t changed your Will. This would mean that in the eyes of the law you would still be legally married, meaning that your estranged wife / husband would inherit everything. Leaving the risk that any children from your first marriage would not receive a thing.
- After you pass away, your surviving spouse remarries, meaning that the existing will becomes null and void. Your widow could then leave your entire estate to their new partner, leaving your children without a penny.
- Your surviving spouse does not respect your wishes and amends their will after your death.
N.B. A surviving partner in a Mirror Will, will benefit from the whole estate and can change the Will at any time. This leaves no protection for the children of the person who has died.
How Can You Protect Your Childrens Inheritance?
One option is to each have separate wills with a Property Protection Trust included. This ensures that each partner’s children are guaranteed to receive their parents share of the family home on the death of the second spouse.
However, regardless of the type of Will you have, it’s important to understand that when you marry, any existing Will, which may well have included your children, is automatically revoked. As your will is now invalid, the rules of intestacy will apply, unless you make a new will.
This is where using a clause known as “Contemplation of Marriage” is useful. When you use this, you are saying that if you should marry, your current wishes will not be revoked.
What if I want my ex-spouse to benefit from my Will?
This isn’t something you would expect to hear, but it does happen! Sometimes, when a marriage has ended amicably, ex-partners still want each other to benefit when they go their separate ways. It could be because they share children or have joint commitments that require funding.
However, once your decree absolute is through, the Will treats the ex-spouse as having pre-deceased you. What this means is that if you list your spouse to receive specific items or your estate on your death, it will fail.
For those that wish their ex-spouse to benefit, section 18a of the Wills Act 1837 would need to be included, as amended by the Law Reform (Succession) Act 1995.
Let’s be completely clear – marriage WILL affect an existing Will. In fact, it will revoke it.
If you’d like more information on writing your will, please do not hesitate to contact Davies Estate Planning on 0808 146 9295.
