Wills For Second Marriages: How To Avoid Common Issues

emily gordon brown
Emily Gordon BrownLegal Assessment Specialist @ Lawhive
Updated on 7th May 2024

Second marriages and blended families are increasingly common. However, many people overlook the complexities of estate planning in these situations.

Naturally, you want to ensure your new spouse and children from your second marriage are provided for while also protecting the interests of your other children. To achieve this, it's essential to put specific safeguards in place.

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In this article, we'll talk about wills for second marriages, focusing on common mistakes to avoid. Whether you're thinking about remarrying or already have, we'll give you straightforward advice to help you protect your loved ones and your legacy.

What happens to my will if I remarry?

When you remarry in the UK, your existing will is automatically revoked, meaning it becomes invalid. This is to make sure your new spouse is reasonably provided for if you die.

However, this also means that any provisions you made in your previous will, such as inheritance for children from a previous marriage or distribution of assets, are no longer valid.

For this reason, you should update your will after remarrying to reflect your new circumstances and make sure your wishes are accurately represented. If you don't, it could lead to unintended consequences, such as your children from a previous relationship not receiving their intended inheritance.

When you update your will, or make a new one, you can specify exactly how you want your assets to be distributed among your new spouse, children, and any other beneficiaries.

How can I ensure the fair distribution of assets among my new spouse and children from a previous marriage?

Make a new will

When you die without a will, your assets are distributed as per the rules of intestacy. These rules are fixed and do not consider the dynamics and complexities involved in blended families.

Therefore, in the first instance, you should make a will, or update your existing will, clearly outlining your wishes regarding the division of your estate, and stating who should receive what assets.

Set up a trust

Trusts are another estate planning tool that can ensure the fair distribution of assets in blended families.

In setting up a trust, you can set aside assets for specific beneficiaries, such as your children from a previous marriage, while still providing for your new family.

Create a prenuptial agreement

A prenuptial agreement clarifies how assets will be divided and responsibilities shared if the marriage ends. This is especially handy if you want to keep certain assets separate for your children from previous relationships.

Update beneficiary designations

When you marry again, your life often changes in many ways, including financially. You may have new assets, accounts, or insurance policies to pass on to your new spouse or other beneficiaries.

But, if you haven't updated the beneficiary designations on these accounts or policies, they might still be set to distribute to your previous spouse or beneficiaries.

This means that even if your will specifies different instructions, the beneficiary designations on these accounts or policies usually override what's written in your will. So, if you haven't updated them after getting married again, your assets might not go where you want them to.

How do I make a will for a second marriage?

Assess your assets

Start by creating a comprehensive inventory of your assets, such as properties, investments, savings, personal belongings, and other valuable items.

Next, decide who you want to receive your assets when you pass away. This may be your current spouse, children from both your current and previous marriages, and may extend to other family members, friends, or charitable organisations.

It's important to understand the legal rights of your spouse and children when it comes to inheritance. In the UK, for instance, spouses may have a legal claim to a portion of your estate if they aren't reasonably provided for in a will.

Further, if you aim to support your spouse while also safeguarding the inheritance for your children from a previous marriage, trusts can be a valuable tool. For example, trusts can be set up to provide your spouse with access to assets during their lifetime, with the remaining assets passing to your children after your spouse's passing.

Appoint executors and trustees

Choose trustworthy and competent executors and trustees who will respect your wishes and manage your estate effectively. It’s often advisable to choose neutral individuals who are unlikely to be biased toward one individual or side of the family.

Draft the will

You can draft the will yourself, but it’s usually best to have it drafted by a wills, trust, and probate solicitor to ensure is legally sound and all your wishes are clearly stated.

While not legally binding, a letter of wishes can also accompany your will to explain the reasons behind your decisions. This can be particularly helpful in blended family situations to clarify your intentions and reduce potential conflicts.

Sign and witness the will

Once your will is drafted, it must be signed in the presence of two witnesses, who must also sign the will. These witnesses should not be beneficiaries or the spouse of a beneficiary.

What are the benefits of using trusts in a second marriage?

By placing assets in a trust, you control how and when they're distributed, preventing your new spouse from gaining control and ensuring assets go to your intended beneficiaries.

For instance, you could create a trust to provide your current spouse with income during their lifetime while preserving the principal for your children. Additionally, if you have minor children from a previous marriage, a trust can manage and protect assets for them until they're ready.

For expert help in setting up a trust, contact us for a free case evaluation and quote for the services of a specialist lawyer.

What happens if I don’t have a will in a second marriage?

If you die without a will, known as dying intestate, your spouse may receive a significant portion of your estate. In England and Wales, a spouse typically inherits all personal possessions, the first £270,000 of the estate, and half of the remaining estate.

The other half is divided equally among your children, including those from your current and previous relationships. If you have no children, your spouse may inherit the entire estate.

Crucially for blended families, stepchildren don't automatically inherit anything unless legally adopted by you if you die without a will. They only benefit from your estate if specifically included in a legally valid will.

Given these implications, it's especially important in second marriages to create a will that clearly expresses your wishes for the distribution of your estate.

If the deceased left a will, the rights of the second spouse are determined by the provisions of that will. However, if no will exists, the second spouse has statutory rights under the rules of intestacy as discussed.

Regarding jointly owned property, if the family home was owned jointly, the surviving spouse usually inherits the deceased's share through the right of survivorship if held as joint tenants. However, if held as tenants in common, the deceased's share is not automatically transferred but is managed according to the deceased's will or the rules of intestacy.

Spouses may also benefit from the deceased's pension, depending on the pension type and plan terms, which may include provisions for a surviving spouse. Additionally, if named as a beneficiary on a life insurance policy, the second spouse receives the proceeds directly, bypassing the will and intestacy rules.

Under the Inheritance (Provision for Family and Dependants) Act 1975, if the will does not provide reasonable financial provision for a spouse, they may make a claim against the estate.

In cases where the second marriage was undergoing separation proceedings, rights may vary. Formal separation (such as separation agreements) can alter financial connections between spouses, but specific rights regarding death benefits may persist unless legally altered by agreements like separation agreements.

Get support with Lawhive

Here at Lawhive, our team of wills, trust, and probate solicitors are experienced in dealing with amending or creating wills for second marriages.

Get in touch today to start your case assessment. 

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