Legal Updates

Making a will after a second or subsequent marriage

Without a valid will that says otherwise, your spouse may inherit most if not all of your assets on your death and any children you have from previous marriages could be left with little or nothing.  This is why more and more cases are being brought before the courts by children who have not been provided for under the will of a parent.

If you are in your second or a subsequent marriage, having an effective up-to-date will is vital to protect your assets, your children and your extended family. Sarah Thiede, wills, trusts and estate planning solicitor with Malcolm C Foy & Co in Doncaster and Rotherham explains what you need to consider if you have been married more than once.

The problem with a typical will

It can be difficult discussing wills with your partner when there are children from a previous marriage to consider, particularly if you each want your own flesh and blood to benefit under your will when you die. The result may be an inadequate will.

A common position is that the surviving spouse typically inherits everything, while children only inherit the estate on that spouse’s death. The risk here is that after you pass away, your surviving spouse could then change their will to exclude your own children to benefit others.

If you are in a second or third marriage, you need to consider how you want your estate divided up when you die. How do want to ensure your spouse is provided for, while also protecting and providing for your children? What about any children you may have in this marriage?  Do you want to leave something to, for example, an ex-partner and to other extended family members from a previous marriage?

Depending on your particular circumstances, a flexible will could be more effective in protecting your estate and your long-term wishes by, for instance, ring-fencing some assets so that they would not form part of your surviving spouse’s estate when they eventually pass away.  This would mean any change in their will after your death will not affect those assets – they will still pass under the terms of your will. 

How a flexible will can work

Though you could leave lump sums to your children in your will to ensure they are provided for, there is no guarantee the cash will be readily available on your death. There are also tax implications to consider, because the more money you leave directly to your children the more inheritance tax your estate may have to pay. 

One potentially tax-efficient solution is to use a will trust under which your surviving spouse would have the right to stay in the matrimonial home, and possibly to receive the income from and interest on your assets when you die.  No inheritance tax will be charged on the trust assets although income tax may be payable on the income.   Then, on your spouse’s death, the property and assets will pass to each of your children and anyone else named in your will.  Only on your spouse’s death might inheritance tax be payable. 

If you are about to remarry

If you are planning to remarry, any will you have automatically becomes revoked when you get married, unless you make a new will specifically in contemplation of your impending nuptials.  This means that if you were to die first without a fresh will, your new spouse will inherit your entire estate up to £250,000 to the exclusion of your children from any previous relationship.  Only the amount exceeding £250,000, if any, will pass to your children to be split equally.

What you should do now

No one knows what the future holds and we advise making a will or reviewing any existing will whenever your circumstances change significantly – and certainly in the event of engagement, marriage or divorce.

For further information, please contact Sarah Thiede in the Wills and Probate team on 01302 340005 or email

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.