When David and Helen married, neither of them had thought much about how a second marriage might affect their Wills or future inheritance arrangements.
They were both in their early sixties when they married, both had adult children from previous marriages and they were looking forward to retirement together. Between them they owned a home, had savings and pensions, and enjoyed spending time with their family.
Like many couples who marry later in life, they assumed that marriage had simplified everything.
“If anything happens to me, it’ll all go to you anyway,” David would often tell Helen.
When Marriage Changes Your Will
Several years later, David died unexpectedly.
As Helen began dealing with the practicalities following his death, she discovered that David had never updated his Will after their marriage. Marriage can automatically invalidate an existing Will unless it was prepared specifically with that marriage in mind. David’s old Will was therefore no longer valid.
However, rather than this creating certainty for Helen, this created a different problem altogether: David had died intestate.
What Happens If You Die Without a Will?
Many people assume that their assets will pass to their loved ones in the way they would want. However, if someone dies without a valid Will (intestate), the law decides who inherits according to the intestacy rules.
Under the current intestacy rules, as David is survived by a spouse, Helen is entitled to receive up to £322,000 from David’s estate, together with and all of his personal possessions. The remaining value of the Estate is divided equally with 50% passing to the surviving spouse Helen and 50% to David’s children, regardless of how many children David has.
Questions That Often Arise Following a Death
Helen soon found herself asking questions she had never previously considered:
- Did David own the family home jointly with her?
- If so, was it held as Joint Tenants or Tenants in Common?
- Did all of his assets form part of his Estate?
- Would she need legal authority to deal with David’s estate? If so, would she be entitled to apply for it?
- How would David’s children be affected?
The answers depend upon the nature and value of the assets involved.
Joint Tenants or Tenants in Common: Why Ownership Matters
If David and Helen owned their property as Joint Tenants, David’s share would automatically pass to Helen when he died, regardless of the intestacy rules.
However, if they owned the property as Tenants in Common, David’s share would form part of his estate and be distributed according to the intestacy rules.
Second Marriages and Blended Families
The situation also raises a wider issue that is frequently encountered in second marriages and blended families.
David had always wanted Helen to remain financially secure. Equally, he wanted his children ultimately to benefit from the assets he had accumulated during his lifetime.
Without a Will, David had lost the opportunity to determine how those competing interests should be balanced.
For many blended families, a carefully drafted Will that includes a Life Interest Trust can provide an effective solution. This can allow a surviving spouse to continue living in the family home or receiving income from certain assets during their lifetime, while ensuring that those assets ultimately pass to the children after the spouse’s death.
This can be particularly important where spouses have brought separate assets into a marriage, or where each wish to ensure that their own children from previous relationships are ultimately protected.
The position becomes even more complex where inheritance tax planning is required, substantial assets are involved, or there are concerns regarding future remarriage, care fees or changing family circumstances.
The Importance of Reviewing Your Will
David’s situation also highlights the importance of keeping your Will and other planning documents up to date. This is something that can easily be overlooked when life is busy with family and work commitments.
Major life events such as marriage, divorce, the birth of children or grandchildren, retirement and significant changes in wealth, should all prompt a review of existing estate planning arrangements.
A Will that was entirely appropriate twenty years ago may no longer reflect a person’s wishes or family circumstances today.
Planning Ahead for Modern Family Life
While David and Helen’s story is fictional, the legal issues it raises are encountered regularly by private client practitioners.
Modern families are increasingly complex. Second marriages, blended families and competing obligations to spouses and children are no longer unusual. Yet many people continue to rely upon assumptions about what will happen to their estate rather than taking advice and putting appropriate arrangements in place.
Effective estate planning is not simply about deciding who inherits. It is about creating certainty, minimising the risk of disputes and ensuring that the people most important to you are protected in accordance with your wishes.
For couples entering a second marriage, reviewing their Wills can be one of the most important steps they take to safeguard their family’s future, helping to ensure their wishes are clearly documented and their loved ones are protected. To discuss your circumstances, please get in touch with our Private Client team.
For bespoke advice on this or any other area of law, get in touch with the team now.
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