Second Marriages - the importance of making a Will

Almost 40% of all marriages in the UK are second marriages for either one or both partners. With the average age of second marriages at 46 for men, and 43 for women, it is more and more likely that, by the time of the second marriage, you will have accumulated some assets like a property, a pension and savings, and you are also most likely to have children.

Making a Will on second marriage is, therefore, very important if you want to ensure that your assets are inherited as you wish. If you have a previous Will, marriage will revoke it (unless it was made in anticipation of the second marriage).  And if you die without making a new Will (intestate), the Law, as set out in the Administration of Estates Act 1925, will decide who will inherit your estate, which will most likely not be how you intend.  At almost 85 years old, many believe that the statute is out of date and the Law should be changed to reflect modern family structures.  However, if you are about to enter into a second marriage and you do not have a valid Will, it is important that you understand how your estate will pass:-

Married with children

It is a sad fact that over half of all first marriages, for whatever reason, end in divorce. The average age of first marriage has risen by almost 5 years since 1991 to 36 for men and 34 for women. Consequently, the average age at first divorce is also rising - 43 for men and 41 for women, meaning that, on average, there is a greater likelihood of having had children in the first, rather than the second, marriage.

If you have children from your previous marriage and haven’t made an up to date Will, your husband or wife will receive all your personal belongings, a legacy of £250,000 and a life interest in one half of the remaining estate, with the capital passing to the children on the death of the survivor; your children will receive the other half share of the estate outright when they reach the age of 18.

If, however, your estate is less than £250,000, your children from your previous marriage could not get anything as your new spouse’s estate will pass in accordance with their Will or to their family on intestacy, if they too have been married previously and had children. If your property is worth more than £250,000 then your house may need to be sold which could cause great upheaval at a difficult time.

Even if your children do get something, many people feel that 18 is far too young for them to be responsible with their inheritance and with the absence of a Will you are unable to control this. There is also no flexibility to provide for your spouse as you wish whilst they are alive, whilst also making sure that your children will get something at the end of the day.

Married without children

If you don’t have children from a previous marriage, your husband or wife receives your personal belongings on death, a legacy of £400,000 and half of whatever is left outright.  The other half passes to the closest blood relatives, which may be parents or brothers and sisters.

However, problems exist with this especially with elderly parents receiving an inheritance from you as this could increase their estates to a level where IHT becomes payable or increase their existing IHT bill.  Family members with whom you have lost touch or fallen out may be entitled to an inheritance and it may be costly and time-consuming trying to locate them.

Married without children and die together (e.g. in an accident)

There are very sad circumstances where both partners may die at the same time; for example, in an accident . In this case, if you have been previously married, but without children, the estate will pass to the younger spouse and it will then pass to his or her parents.
In this instance, if you die without a Will, your family might not receive anything.
Before your marriage or if you cohabit

Marriages are declining – in 2006 the number of marriages fell by 4% compared with the previous year to 236,980, which was the lowest annual number of marriages since 1895. Consequently more people are deciding to cohabit. However, even if you have been with your partner for many years but decide not to get married, your partner will not receive anything on your death, unless they embark on a claim against your estate, which can be extremely costly, time-consuming and with no guarantee of success.

In all of these circumstances, the advantages of having an up to date Will are clear – it allows you to detail exactly how, who and when will inherit your estate when you die.  This is even more important if you marry for a second time, as the marriage itself will have revoked any previous Will, and you need to ensure that any family from a previous marriage is guaranteed a proportion of inheritance, which if you died intestate, they may not be.
 
In addition, having an up to date Will has many other benefits. Not only will you know that your affairs will be dealt with as you wish upon your death, but you can also choose who would look after your children should anything happen to you and they are still under 18. You can make provision for your partner, friends, relatives or institutions, such as charities, in whatever way you think best. 

A Will can save you Inheritance Tax if you have a large estate by making sure you use available exemptions such as passing assets to your spouse using a trust, which will provide for them but will also look after your children or by directing business property to trusts for the benefit of all the family.
 
Although currently a Deed of Variation can be used within 2 years of a death to redirect assets, minor beneficiaries will not be able to be a party to such a document to rectify the situation and other beneficiaries may be reluctant to do so.

Therefore, I cannot emphasise enough the importance of having an up to date Will.  It’s a false economy to avoid making one – dying intestate can significantly increase the costs of dealing with your estate and add to the stress on your family at an already difficult time. 
 
For more information, please contact Carla Brown on 01590 625816 or email carla.brown@mooreblatch.com