The term ‘blended’ family is an innocuous description for what can be a potentially complicated familial structure resulting from the ‘blending’ of two families following remarriage. For obvious reasons, those who have remarried will be concentrating their efforts on helping their children adjust to having a stepparent and step-siblings – and sometimes a new house and new school. What parents who remarry often overlook is the need to review what happens after they die to the assets they brought to their new marriage, and the unintended consequences of not taking action.
Half of adults in the UK do not have a will
An inevitable side effect of people living longer is that second and third marriages are common. However, what is still not common is people’s propensity to make a will to reflect their new relationship. A study conducted by Canada Life in February 2024 discovered that 51% of adults in the UK do not have a will and of those, 13% have no intention of having one (that figure improves among the over-55s where 70% have a will – but that still leaves 30% who don’t). This implies that a significant proportion of those who tie the knot for a second time are unlikely to have made a will, which given that they are more likely than not to have more complicated finances and family relationships than first timers should ring alarm bells.
No will? Who inherits?
Dying intestate (i.e. without a will) is a minefield. The (non-negotiable) intestacy rules governing who benefits from the estate of someone who dies without a will are prescriptive. Spouses, civil partners and children are all first in line to inherit followed by other close relatives in descending order of blood relationship. Unless you genuinely don’t mind who inherits what, it is very unlikely that your estate (your money, property, possessions and assets) will be distributed as you would like. Under the current rules, your spouse/civil partner automatically inherits all your personal possessions, plus the first £322,000 of your estate and then 50% of what is left (if anything). The remaining 50% goes to your biological or adopted children or, if deceased, their children. Stepchildren would not be in line to receive anything unless you formally adopted them. If your estate is worth less than £332,000, your spouse gets everything and your children nothing.
How do you own your family home?
Most people when they remarry, buy a new home together, representing a considerable joint asset. If you own your home as joint tenants (which is common between married couples), you both own 100% of the property meaning that on the death of one spouse, the surviving spouse continues to own 100% and is therefore at liberty to bequeath it to anyone they wish, such as their own children, leaving yours with nothing. However, in owning the property as 'tenants in common' you each own a 50% share (or whatever proportion you agree). Thus your share of the house would form part of your estate which you could pass to your intended beneficiaries. If you die intestate, your share of the house will be treated as an asset and be subject to the Rules of Intestacy.
Mirror wills
Generally seen as a tax efficient way for a couple to pass their assets (including their nil-rate bands) to each other after death without triggering inheritance tax, mirror wills do exactly that – they mirror each other. Making a mirror will requires a degree of trust and is often the usual route for first marriages where assets are relatively uncomplicated and both parties are equally invested in their children. However, in a second marriage, a mirror will represents a leap of faith that relies on the surviving spouse respecting the deceased’s wishes regarding their biological children (or other intended beneficiaries). There is nothing to stop the surviving spouse from changing their will, leaving all their inherited assets to whomsoever they please, potentially cutting out their former partner’s children and leaving everything to their own children – or, if they marry again, to a family with no connection to their former partner.
Life Interest Will Trust
The law of unintended consequences resulting from mirror wills is not unusual and is the cause of many of the contested will cases dealt with by our contentious probate team. But with some careful planning, it is possible to provide for a second spouse without unintentionally disinheriting biological (or step) children. Under a Life Interest Trust, set up via a will in favour of your spouse, you can specify which assets you want to be transferred to that trust (including your share of the house if applicable) for the ultimate benefit of your children (or any other beneficiaries of your choosing). After you die, your spouse will have access to the income generated by those assets during their lifetime only and they will not be able to alter the trust. After they die, your assets will pass to those you wish to benefit.
Think carefully about the future
You may consider it unromantic to discuss who should inherit the assets you bring to a second marriage - and there still exist too many myths (and a degree of superstition) around making a will. So, stop and think about where your assets may end up if you don’t make a will – potentially with someone you’ve never heard of, let alone met, if your second spouse remarries after your death. Your children certainly won’t thank you for dodging the issue. It is also worth considering altering your will in favour of your children (or other beneficiaries) rather than your former spouse, while you are in the process of divorcing. If you intend to remarry fairly quickly, you can have a will ‘in contemplation of marriage’ drawn up which explicitly states your intention to marry and will not be revoked by marriage. However, the same warning applies – think about the future and the various scenarios that may play out.
Another fact unearthed by the Canada Life study revealed that many wills were poorly drafted, excluding some people and including others erroneously. We can help you avoid that – our team has considerable experience in drafting wills that accurately reflect individuals’ wishes. Do give us a call and we’d be delighted to discuss the options open to you.
The information provided in this article is provided for general information purposes only, and does not provide definitive advice. It does not amount to legal or other professional advice and so you should not rely on any information contained here as if it were such advice.
Wright Hassall does not accept any responsibility for any loss which may arise from reliance on any information published here. Definitive advice can only be given with full knowledge of all relevant facts. If you need such advice please contact a member of our professional staff.
The information published across our Knowledge Base is correct at the time of going to press.
