Many people don’t realise the effects of getting married or divorced can have on your estate whether you die with a Will or without.
The Effect of Marriage on Wills.
Marriage CANCELS your Will unless it includes an “in contemplation of marriage” or “in contemplation of civil partnership” clause. If not, the Rules of Intestacy will apply.
Where there is a “blended family” with children of only one of the couple, the situation is much more complex if they are to be sure of any benefit, but without disadvantaging the new spouse – call us on 01323 741200 if that is the case.
Example of the effect of Marriage on Wills
Tom makes a Will in 2018. 2 years later he meets Rose and they decide to have a lavish wedding on a beach in Mexico. Tom fails to make a new Will after he marries Rose and dies soon after from an underlying health condition.
This means that Tom has died intestate (no valid Will) and his assets will pass in accordance with the Rules of Intestacy. It may work out OK if his estate was worth less than £270,000 and he wanted it all to pass to Rose but what if he wanted to pass some of his estate to her and some to his parents? But if he had children from a former relationship, life for those left behind could be very expensive as you will discover.
If Tom had made a Will after he got married then his estate would pass in accordance with the terms of his Will, perhaps with a Life Interest to Rose, but then for the benefit of his children if any. But things change and if Tom and Rose have children together, the situation simply must be reviewed.
We recommend a basic review not less than once every three years, or sooner if something significant happens. Members of the Peace of Mind Service will be reminded to have a think and maybe a chat with us every year, should things have changed – and that includes not only the family, but Tax and the Law – areas most clients will not be fully familiar with,
What is “In Contemplation of Marriage” or “In Contemplation of Civil Partnership”
If the person making the Will (the testator”) is expecting to be married to a certain person at the time the Will is signed, when they do marry, the Will won’t be cancelled – provided the relevant “in contemplation” clause is included. The clause will need to include the name of the person the testator expects to marry. If they marry someone else, the Will becomes invalid.
Three conditions need to be met in order for this clause to be effective.
- Firstly, the testator must expect to be married or form a civil partnership (which type must be specified) with the named person at the time the Will is signed. It doesn’t work if the testator merely believes they will marry this person at some point in the future.
- Secondly, it must be clear from the Will that the testator intended that the Will should not be revoked by the marriage or formation of a civil partnership.
- The ceremony is of the type specified – a couple whose Wills had an “in contemplation of marriage” clause but decided on a civil partnership wasted their money on the Wills, as they have invalidated them! The same applies if the clause specified civil partnership and they decided to marry.
What if the current Will contains an in contemplation of marriage clause and the couple go on to have a civil partnership?
If the current Wills include an in contemplation of marriage clause and the couple then decide to enter into a civil partnership, their current Wills will be CANCELLED.
The Effects of Divorce on Wills.
When a couple start divorce proceedings, they may usually fail to update their Wills and take the significant risk of leaving it until the decree absolute has been received (the document which means you are legally divorced). We would recommend strongly that the change be made immediately after the decision is made to divorce as until the decree absolute is issued, you are still classed as legally married to one another which means the spouse can still benefit in accordance with your Will if it is not amended and most people would want to avoid this.
Unfortunately, no one can know how long their life span is and therefore if the spouse was to die before the decree absolute was issued, either with a Will naming spouse as the first level residuary beneficiary or alternatively die intestate, their estate will pass to the spouse which is not what they would have wanted to happen. Clearly, the divorce settlement may override aspects of the Will, so it may be necessary to just have a brief review with us once the decree absolute has been granted, but the chances are no changes will be needed – just better safe than sorry!
It is also prudent to sever the tenancy on any jointly owned property to stop it from passing automatically to the separated spouse in the event of death before the decree absolute. This will enable each spouse to gift their share of the home as they wish rather than it passing by survivorship. Again, the divorce settlement may change the situation
Where the Will is re-written during divorce proceedings or even where you separate and do not want the other spouse to benefit from your estate, we would advise considering an exclusion clause in the Will specifically excluding husband/wife and stating this is not an oversight so the intention is absolutely clear.
A letter of wishes should set out in detail the reasons for the exclusion in the event the Will is ever contested by the ex-spouse as this is what the Courts will seek to rely on. There is a risk the ex-spouse could bring a claim against your estate on the basis they have not received reasonable financial provision which is addressed in another article.
Once your divorce has been finalised and a decree absolute issued, the old Will would treat the ex-spouse as having pre-deceased you. This means if your current Will lists your spouse to receive your wedding ring or to receive your estate on your death, this gift will effectively fail. The same would apply to any appointments of the ex-spouse as trustee, executor or guardian, which may not always be what is needed for joint children.
But I want my ex-spouse to benefit from my Will?
There are instances where the marriage may have ended amicably and they still wish to benefit one another on their death or for the ex-spouse to continue acting as the executor and trustee. Once the divorce is finalised, the ex-spouse is treated as having as dead, so a new Will is needed if the intention is for the ex-spouse to benefit from the Will once the divorce is finalised, the following clause would need to be included in the Will.
“Section 18A of the Wills Act 1837 as amended by the Law Reform (Succession) Act 1995 (or any modification or re-enactment) shall not apply to my Will.”
This can be an issue where someone has remarried and has children from his or her first marriage that should benefit under the terms of the Will. If the current Will does not include an “in contemplation of marriage” clause it will be revoked and therefore invalid. This means the deceased’s assets will pass in accordance with the laws of intestacy.
Example
Tom makes a Will in 2018. 2 years later he meets Rose and they decide to have a lavish wedding on a beach in Mexico. Tom fails to make a new Will after he marries Rose and dies soon after from an underlying health condition.
This means that Tom has died intestate and his assets will pass in accordance with the Ruless of Intestacy. In this case it may work out well for him if his estate was modest and he wanted it all to pass to Rose but what if he wanted to pass some of his assets to her and some to his parents or his children from a previous relationship (who would left to sue under the Inheritance Act to everyone’s disadvantage)?
If Tom had made a Will after he got married or “in contemplation” then his estate would pass in accordance with the terms of his Will.
In Contemplation of Marriage or Civil Partnership
Earlier in this article, we mentioned that marriage cancels a Will unless the existing one contains an “in contemplation of marriage” or “in contemplation of civil partnership” clause.
If the testator expects to be married to a certain person at the time the Will is signed, when they do marry, the Will will not be cancelled if the “in contemplation” clause includes the name of the person the testator expects to marry. If they marry someone else, the Will is cancelled and the Rules of Intestacy apply in the absence of a new Will. Note the two conditions above.
What if the current Will contains an in contemplation of marriage clause and the couple go on to have a civil partnership?
If the current Wills include an in contemplation of marriage clause and the couple enter into a civil partnership, their current Wills will be revoked.
What if I want my ex-spouse to benefit from my Will?
There are instances where the marriage may have ended amicably and they still wish to benefit one another on their death or for the ex-spouse to continue acting as the executor and trustee. Once the divorce is finalised, the ex-spouse is treated as having as predeceased you.
If the intention is for the ex-spouse to benefit from the Will once the divorce is finalised, the following clause would need to be included in the Will.
“Section 18A of the Wills Act 1837 as amended by the Law Reform (Succession) Act 1995 (or any modification or re-enactment) shall not apply to my Will.”