Marriage invalidates a Will, unless it was written in contemplation of the union. This means that if a person is getting married, or have recently said “I do” then it’s recommended to make a new Will, otherwise, the estate will be distributed according to the rules of intestacy after that persons death.
Why does marriage revoke a Will?
A Will is automatically revoked by a new marriage or civil partnership. The rationale behind this is that marriage represents a significant shift in the relationship status. People might not feel like much has changed, but actually, their legal position is completely different than when they were unmarried. The law therefore assumes that the testamentary intentions need reviewing.
A Will made in anticipation
If a Will is revoked on marriage, why should anyone make a Will before marriage?
Actually, it is possible to avoid the revocation by writing a Will that is made in contemplation of a marriage or civil partnership.
A Will can be made in contemplation of marriage. As long as the Will on the face of it states that it is made in contemplation of marriage and the marriage is to a named person, then marriage occurs the Will won’t be invalidated by the marriage
A Will made in contemplation of a marriage continues beyond the ceremony and the honeymoon period. The marriage that is to be contemplated is to be a specific one, although a date does not have to be mentioned in the Will. It is not possible to make a Will in contemplation of a marriage that may one day happen in the future to some person unknown, otherwise every Will would include that clause. There has to be a firm intention to marry or enter into a civil partnership with a specific person.
Aspects to consider
The intestacy rules, in the event of there being no valid Will, states that the entire estate will pass to any surviving spouse, if there is one, and it’s worth under £322,000. If there is a surviving spouse but no children, the entire estate will pass to the spouse even if it’s worth over £322,000.
If a person is married and die without a valid will and with an estate worth more than £322,000, the first £322,000 goes to the spouse as well as half of the remainder, with the other half going to any children.
This can sometimes cause difficulties, for example if the house is in the sole name of the deceased and is worth over £322,000 but there are limited other assets.
What happens if a new Will is not made after marriage?
From the moment the vows are exchanged, neither bride nor groom have a valid Will in place (unless Wills have been made in contemplation of the marriage). Obviously, most newlyweds have little intention of making a Will review appointment – there are the reception and the honeymoon to enjoy first.
However, not making a Will can create serious problems, especially if anything should happen to either party before a new Will can be made. On death, each party will die intestate. The intestacy laws will apply to the distribution of their estate, to include cash gifts given by parents and grandparents on the occasion of the wedding or partnership. Where it cannot be ascertained who died first in an accident, then it will be assumed that the oldest died first. Their estate will pass entirely to their spouse or civil partner where there are no children, and then to the relatives of that younger spouse or civil partner. This may leave one side of the family feeling aggrieved.
For this reason, anyone who is getting married should look to see prfessional advice. Although making a Will might not seem like a particularly romantic thing to do before the nuptials, proper planning would be advantageous. Lots of thought goes into the wedding venue, catering and outfits – but the perhaps wedding planning should also consider talking with a Willwriter!
How does it affect co-habiting couples?
The law in relation to co-habiting couples is very different from the law in relation to married couples or couples in civil partnerships. There is no automatic right to benefit from a partner’s estate simply due to the fact that there is a relationship, regardless of the length of that relationship.
Making a Will would clearly set out any wishes as to who should benefit from the estate should a partner dies. Read more on the importance of having a will for co-habiting couples.
Will getting divorced invalidate a Will?
If a person is considering separating or divorcing their spouse, they should consider making a new Will otherwise, should they die before the divorce is finalised, their estate will pass under the existing Will and/or the Rules of Intestacy even if the couple are separated.
Until the decree absolute has been pronounced, a couple is still legally married despite the fact that they may be in the process of divorce. A new Will can clearly state wishes for who assets are to pass on to upon death.
The granting of the decree absolute has an effect on any Will that exists at that time. Unless it is expressly stated in a Will, that the following is not to happen, then when the decree absolute is made, any appointment in a Will of a former spouse as executor or trustee is ignored and any gifts made to him or her automatically lapse.
What this means is, if, for example, a gift was made to a spouse of £10,000 in a Will, once the divorce comes through this gift will be ignored. This automatic revocation also has implications for those who are getting married after the death or divorce of a previous spouse.
Imagine, for example, that there is a mirror Will with the current spouse. It is agreed to leave everything to each other and then the children. However, if one partner dies before the husband or wife, there is nothing stopping the surviving spouse from re-marrying. This would revoke the Will made together, which could cause assets of the current marriage to pass to a complete stranger under the intestacy laws.
This is a particular problem on second, third and fourth marriages or civil partnerships. There may be children from previous relationships who stand to see their inheritance disappear into the hands of a newly wedded step-parent. It is not uncommon for those step-parents on later versions of their Wills to ignore their moral obligations and to favour their own natural born children.