Preparing for the impact of marriage and civil partnerships on wills

by Barbara Stephens, Head of Private Client at Hethertons Solicitors

Over the last decade, the number of people choosing to remarry in later life has risen significantly as attitudes towards divorce and marriage have changed.

In fact, the latest available figures from the Office for National Statistics show that the number of weddings increased for men aged 50 and over and women aged 35 to 45 years and over in 2015 during a period where the number of marriages, in general, was the lowest on record.

Whilst the ‘traditional’ stigma regarding divorce and remarriage may have changed a long time ago, the rules regarding how marriage affects a person’s will haven’t, which has led to increasing tensions between potential beneficiaries.

For the purpose of simplicity, any reference in this article to ‘spouse’ also includes any person who is registered as civil partner, as defined in the Civil Partnership Act 2004 and any reference to marriage also includes the registration of civil partnerships.

Under current legislation, marriage automatically revokes the wills of the couple getting married, unless specific wording is included in the wills to prevent revocation. The automatic revocation will happen regardless of whether the intentions of the couple have changed or not.

If new wills are not made the children of a previous marriage could be disinherited in favour of a new spouse, who is likely to be the main beneficiary of the estate under the rules of intestacy.

The rules of intestacy, which apply where someone dies without a will, stipulate that the spouse will receive £250,000 from the deceased’s estate, and all the personal possessions, whatever their value, provided they survive the deceased by 28 days. They are also entitled to half of the remaining estate. The other half is divided equally between surviving children.

The application of these rules may significantly differ from a person’s former will and could leave surviving children with a reduced or negligible inheritance.

The Government is currently under pressure from various groups to change the law so that marriage does not automatically revoke a will, but unfortunately for those affected the current laws remains in place for now. We have seen the damage that the automatic revocation of a will following a new marriage creates to formerly well-established relationships.

With this in mind, individuals planning to marry or register a civil partnership must consider the effect that the revocation of their wills may have on their original beneficiaries. They should take appropriate legal advice to consider their present and past arrangements and to ensure that their intended beneficiaries will still inherit.

New wills may be drafted once a marriage has taken place or even beforehand as long as it is clear that the new wills are to take effect after the marriage.

We recommend that our clients update their wills every five years in any case, or following a change in circumstances, such as remarriage, the marriage of a child or the birth of a grandchild, to ensure that their wills reflect their current wishes.

Drafting a will with a solicitor does not have to be costly and provides peace of mind for the future, especially if complex family arrangements are involved.