I am getting re-married – will my children still inherit?

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Many people don’t know that when you get re-married your existing will becomes null and void, so you will need to make a new one if you wish to ensure your loved ones are provided for if you die. (NB this is the case in England and Wales and Northern Ireland; it’s different in Scotland – see section below.)

If you don’t have a will, your estate will be distributed under the rules of intestacy, which direct that your spouse will automatically inherit the first £250,000 of your estate and all of your personal possessions. There are more complicated rules if your estate is valued over £250,000, depending on which of your relatives are still alive. (There is a useful tool on GOV.UK to work out who inherits if someone dies without a will.)

This may mean your children will not inherit as much as you would like them to, so it is essential to arrange a new will as soon as practicable after you have re-married. You can, in fact, make a will in anticipation of getting married, in which case your advisor will incorporate a clause stating that the will should be read as though you are already married. However, you may find it simpler to make your new will as soon as possible after you are married.

Providing for your family

If you have children from your first marriage, then you will probably want to make sure that your children and your new spouse and perhaps any step children are provided for in the event of your death. You may wish to consider setting up a trust in your will that will allow your second spouse to benefit from your assets during his or her lifetime with the certainty that your children will receive the assets later on.

Having experienced the breakdown of your first marriage, you may wish to put some plans in place in case this second marriage doesn’t last. A prenuptial agreement would enable you to protect some assets for your children if your marriage breaks down.

Home ownership

If you own your matrimonial home as joint tenants it may be more appropriate to change the ownership to tenants-in-common so that you have greater control over who should inherit your share of the property if you die. With a tenants-in-common ownership your share passes into trust on your death rather than automatically passing to your second spouse.

If you do this you should draw up a Declaration of Trust that sets out each co-owner’s stake in the property so that your children will inherit the right amount. You can also stipulate whether the surviving partner would have the right to continue to live in the property until they pass away or wish to sell. Without this in place, your partner may be forced to sell the property in order to give your children their inheritance.

NB: Home ownership options are similar but with slight variations in terminology and process across the UK. You can find out more in our article: ‘Should we own our home as joint tenants or tenants-in-common?’

Proper planning

Planning for all eventualities can be complex, so it is important to speak to a qualified advisor to make sure you have covered all bases. With proper planning you can ensure that your second spouse and your children are both protected and maintain control over how your assets are distributed on your death.

What about in Scotland?

In Scotland, your will is not revoked upon marriage but it is still important to review your will to ensure everyone you want to provide for is included. In addition, Scotland has different rules in relation to inheritance, with a spouse/civil partner and children entitled to a ‘legal right’ to inherit a set portion of your estate.

Things to consider when making a will

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It’s very easy to put off making a will. No-one likes to think about their own mortality, and it can be tricky working out who should inherit what, whether it’s property, money or possessions.

Let’s break it down into stages to make it more manageable.

Who gets what in your will?

Who would you like to benefit from your will? You could make a list of people that you would like to inherit from you such as your spouse or partner, children, other family members, friends and charities. The people that benefit from your will are called beneficiaries.

How much do you own?

Have a think about what you own, including money in bank or building society accounts, property, pensions, life assurance and possibly a business. Try to estimate the value of these assets. You may also have cars, furniture or jewellery that have significant or sentimental value, which you may like to leave to someone in particular. You should also consider your digital assets. You can make all this clear in your will.

What about specific gifts in your will?

You could start thinking about specific items or amounts of money to leave to your beneficiaries, such as ‘my wedding ring to my daughter’ or ‘£1,000 to my son’. These are called specific gifts. You can leave the remainder, known as ‘the residue’, to your other beneficiaries. Because you won’t know how much you will have left, divide it into shares. For example ‘I leave the family home to my wife, and the residue of my estate is to be divided in equal shares between my children’.

Will you have to pay inheritance tax?

The inheritance tax allowance is currently £325,000 for an individual, or £650,000 for a couple who are either married or in a civil partnership. If you live with your partner but are not legally civil partners, then he or she will not qualify from this allowance after you die.

Anything over this threshold will usually be charged at 40% for inheritance tax. You can leave everything to your spouse or civil partner free of inheritance tax.

The Residence Nil Rate Band gives you an additional allowance of £175,000 (frozen until 5 April 2026) to be used against your home, provided you leave it to your children or grandchildren. This allowance can be transferred to a spouse or civil partner if it isn’t used up on the first death. It’s best to take professional advice, if you are unsure, because it is a complicated matter and there could be other reliefs or allowances available to you.

There is an unlimited relief for a spouse/civil partner if both are UK domiciled (or transferor non-domiciled).

If it is a gift from a UK domiciled to a non-UK domiciled spouse/civil partner (the non-UK domiciled spouse/civil partner can elect to be treated as UK domiciled for IHT purposes) then it is £325,000.

Do you have any vulnerable family members?

If you have young children, you can appoint a legal guardian in your will to ensure that if something were happen to you and your partner, they will be looked after by someone you trust implicitly with their well-being.

If you have a family member with disabilities, or mental health issues, who you need to provide for after your death, you should speak to a professional about setting up a trust. This can be managed by someone that you trust after you have gone, and you can leave specific instructions or wishes about how they should manage it. (For further information, read ‘How can I make sure my disabled child is provided for when I die?’)

Who can help me make a will?

As specialists in inheritance and succession planning, members of STEP, who are known as TEPs, draft wills and trusts, administer estates, act as trustees and advise families on how best to preserve their assets for future generations.

Choosing a professional to help you to deal with such important and often sensitive issues can be difficult. Many aspects of planning are non-regulated, meaning anyone can write a will, for example, regardless of training or expertise. With a TEP, you’re in safe hands.

I don’t believe it! Common excuses for not making a will

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I have been working as a solicitor for more than 30 years. With every day that passes I begin to feel (and possibly look) like Victor Meldrew from the classic TV programme, One Foot in the Grave. I find myself frequently saying ‘I don’t believe it!’.

Sadly, I deal with inheritance disputes, and even more sadly, I see families falling out about the estate of a family member who has died. What is all the more tragic is that many of these disputes would never arise if people made a formal will to set out their wishes.

From love to war

I recently represented the long-term partner of a very successful businessman. They had been together for over 20 years. He knew that he was dying of an incurable disease. He had advice from a solicitor that he should make a will, but he refused to sign one. When he died without a will, none of his estate went to his long-term partner, but instead went to the children of his former wife.

To say that disagreement erupted between family members was an understatement. Court proceedings had to be commenced for reasonable financial provision under the Inheritance Act 1975. The close family who one year were sharing Christmas dinner around a dining room table found themselves the next year arguing around a lawyer’s table.

All of this could have been avoided if he had made a carefully considered will – making provision for the partner he loved.

Protecting your business

Another successful businessman was in partnership with his brother. They both received professional advice that they should make wills and that they should be updated from time to time. Although they both made a will to ensure the continuation of their business, they failed to update their wills when their business was changed from a limited company to a partnership. This meant that when one of the brothers died unexpectedly, the provisions in the will about company shares became invalid.

Expect the unexpected

A wealthy man sadly had a history of failed relationships, with a variety of children by different partners. He found it ‘too difficult’ to work out the provision that he wanted to make for each of his children and former partners. He thought he would live for many years and spend most of their inheritance before he died and he said that they could ‘fight about what was left’.

Unexpected things happen. This man died, unexpectedly, shortly after he retired, leaving a large estate for his children to do exactly as he had predicted – namely fight about what was left.

Everybody dies, so make a will!

The story that I get from so many clients is that their loved one ‘never thought that they would die’. As I said at the outset of this article – I just don’t believe it!

When I give advice that people should make a will I do this not from self-interest, but because I genuinely hate to see families fall out at such a sad time.

If things do go wrong then a good lawyer can tell you about the pragmatic steps that can be taken to resolve a difficult situation without causing needless and undue family disharmony. Many advisors will not charge for initial telephone, or personal, advice – advice that can be priceless.

Talk to a TEP – find an expert near you

Stephen Lawson TEP is a Partner and Head of Litigation at FDR Law LLP, Frodsham, UK