Second Marriage – The Importance Of Making A Will

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Following divorce it is not unusual for people to agree to make a Will including provision for the ex-spouse and children from the marriage.

A lot of people are unaware that marriage automatically revokes an existing Will, (unless the Will is made in contemplation of marriage), which then means the estate passes in accordance with the intestacy rules.

Although ex-spouses and children can make claims against the estate under the Inheritance (Provision for Family and Dependants) Act 1975, this can potentially lead to the involvement of a number of separate law firms (the spouse and ex-spouse would be represented by different firms and in some cases the children are separately represented, with the potential for each child to have his/her own lawyer).

The consequence of this is that the estate can be significantly reduced due to the legal costs. If you are considering a second or subsequent marriage, it is therefore highly advisable that you see a lawyer and make a Will in contemplation of that wedding, and consider the potentially competing claims of different dependants.

With some divorces, the claims that spouses have against each other under the Inheritance (Provision for Family and Dependants) Act 1975 are dismissed, but if it is a case where one is paying ongoing maintenance to the other, then the recipient’s claims would normally be left open.

In simple terms, you cannot escape your obligation to maintain your ex-spouse by dying, so you should include in your Will provision to ensure that either the maintenance continues to be paid from your estate, or there is a lump sum which sufficiently compensates your ex-spouse for the loss of maintenance.

Advice will be needed as to the amount of this, because obviously it will depend on the duration of any outstanding maintenance claim. You should also consider what provision is appropriate for minor or dependant children.

This can be potentially complicated if, for example, there are minor children of a new relationship but adult children at university to whom you have been providing financial support. It is not just a question of doing what is right financially, but also thinking about how the individuals will feel when they see the Will, bearing in mind this will become a public document.

Consideration could also be given to setting up a trust and giving trustees discretion, but some would see this as passing the buck, and it is important that any trustees are aware of your wishes and priorities, to hopefully avoid them being put in difficult positions.

Consideration also needs to be given to your future spouse and any children you already have or might have in the future.

You should consider what will be part of your estate as well as what might fall outside of it; the latter includes arrangements such as life insurance policies - that can help pay off mortgages - and pensions, and can be useful for making provision for dependants (note pensions may have been shared on divorce so worth less than they were previously).

The key thing is to consider all who you feel obliged to support whilst alive, and how best these competing claims can best be met, particularly in the event that your estate is limited.

You should take advice, and ensure that your reasoning is properly documented to reduce the potential for expensive arguments in future.

Written by Kirstie Law Solicitor, Collaborative Lawyer and Mediator at Thomson Snell & Passmore. Visit www.ts-p.co.uk for further information.

PHOTO CREDIT: ERNST VIKNE

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