Making a Will
Wills and Marriage
Marriage is a hugely significant event for everyone, regardless of religion or background. If you are getting married, it is vital to take the legal implications of the marriage into account.
We know that should anything happen to you, you need to be sure that your spouse will be taken care of in the manner you specify.
Both married and unmarried couples should create a Will. For married couples, certain incentives mean that you pay less inheritance tax, while for unmarried couples, the uncertain status of your partner means you need to specifically name them in a Will or they might not receive anything.
Unfortunately, making a Will can sometimes be complicated by a number of external factors, including illness. Here, we examine how illnesses can impact on the Will making process so you have the information you need.
Before we get going, it’s important to stress that whenever possible it is best to make a Will when in good health. You should also review your Will after any major change in your life – meaning that even if you have made a Will while healthy, it may be necessary to review it if you discover that you are ill.
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Making a Will is especially important if you are not already married. As an unmarried partner, your partner may not have a say in important subjects such as your funeral arrangements and the distribution of your estate.
If you have been together for two years and have a joint bank account, then they can keep what is in it. Otherwise, your partner will not receive anything unless they are on extraordinarily good terms with your family, or they are prepared to launch costly and draining court proceedings against your family to ensure that they receive ‘reasonable financial provision’.
Making a Will is a much more reliable way to ensure that a partner is provided for.
Although a Will made before a lawful marriage or civil partnership is automatically revoked by that marriage or civil partnership, it will not be revoked if the Will is made “in contemplation”. It is not enough to expect to marry in general, or sometime in the future – you must expect to marry a specific person, and in a reasonable amount of time. Making a Will in contemplation of marriage, or making a Will in contemplation of a registered civil partnership, should help your loved one receive as much of your estate as you would like them to.
Making a Will before marriage is important, and safer than avoiding making a Will, but there can be complications. If you have clear ideas about the management and distribution of your estate, seeking advice at an early stage could prove to be a vital step.
A cohabiting couple has no special legal status. This means that if the surviving partner does not jointly own the property, they may be made homeless as the property is distributed according to the rules of intestacy.
If they do jointly own the property as Tenants in Common, the deceased partner’s share of the property will still be distributed according to the rules of intestacy, resulting in a very complicated situation. This sort of situation is not enjoyable to sort out for anyone involved, and can result in heightened tensions or even court cases.
If you are Joint Tenants, your portion of the house will be left to the surviving partner without the need to make a Will. In fact, you can’t pass on a joint tenancy in a Will even if you want to, so if you would like to pass on your share of the property to someone other than your partner it is best to arrange to hold your property as Tenants in Common.
Married couples or civil partners may leave everything to one partner and be exempt from inheritance tax.
As a married couple or civil partners, the surviving spouse may have the option of avoiding inheritance tax up to £650,000 at time of writing, double the usual threshold of £325,000. Following recent changes to the budget, this will rise to £1000,000, double the usual threshold of £500,000. This is because one spouse can transfer any remaining inheritance tax threshold to the other. While this is very useful, house prices in some parts of the country can rise far enough that even modestly well-off families could be at risk of breaking the inheritance tax threshold – even with a full inheritance tax threshold transfer.
Without a Will, the rules around intestacy are complex, differing between the regions of England and Wales, Scotland and Northern Ireland; fundamentally, the issue is that you do not have control over who may receive what, making the period even more stressful and emotional for the surviving spouse
Extending marriage to apply to same sex couples has not changed the fundamental nature of marriage, and a same sex married couple should be able to take advantage of all the same rights as a heterosexual married couple. A civil partnership may also be converted into a marriage.
Whether a partner within a married couple is trans or cis, and whether a transition began before or after the marriage, makes no difference your rights as a married couple with respect to Wills and inheritance as long as you are still together.
The benefits of a same sex marriage or a civil partnership are the same as a heterosexual marriage when it comes to making a Will. A same sex marriage is identical to a heterosexual marriage where it is recognised, but it may not be recognised in some areas of the U.K. – such as Northern Ireland at time of writing – which is the only reason we make the distinction.
As a married couple, you may seek to make a joint Will, a single Will that applies to both of you – however these are very rare, and you may find that you are better served by making mirror Wills.
Alternatively, you may seek to make mutual Wills. The main complication with mutual Wills, which may be a strength or a weakness depending on your perspective, is that they can remain valid even if one of you later remarries. This could be a positive if you want to ensure that stepchildren cannot be disinherited by a surviving spouse, or a negative if you want a remarriage to work in the usual way – to have the effect of revoking any earlier Wills.
A more common solution when both parties want the same Will is to create what is known as mirror Wills. These are simply separate Wills that are nonetheless virtually identical, leaving the estate to the same beneficiaries.
During a divorce or separation period, your legal partner will probably still be your Will’s main executor and your Will’s main beneficiary. This might not be what you want anymore, especially if you are parting on bad terms. For that reason alone, it’s important to rewrite a Will during the separation period.
It is also important when separating to ensure that your possessions and property are separately owned, otherwise large parts of your estate may default to your ex-spouse.
Once a divorce has happened, your Will still exists – therefore it is still important to rewrite it, as it may no longer reflect your wishes. However, any gifts to your ex-spouse will lapse, and they will no longer be the executor of your Will. This may or may not be what you want; in either case, you should rewrite your Will, as your Will may be left without any executor or with too few executors, presenting significant problems.
On remarrying, any previous Will becomes void unless, as mentioned, it is a Will made in contemplation of marriage or civil partnership to a specific person.
Child custody can easily go to the ‘wrong’ person, especially if the other parent named on the birth certificate is an unsuitable guardian.
Whether you are in a legally-recognised partnership, separating, divorced or remarried, you should specify legal guardians in your Will if you would like to be able to control who receives child custody in the event of your death. You must of course find out first if they are prepared to act as your children’s legal guardians!
You may also need to appoint alternative guardians, in case your preferred legal guardians are unable to fulfil their role.
Unless you formally adopt a stepchild, they will not inherit in the event of intestacy. If you would like a member of your stepfamily to inherit, it is often easiest to specify them in your Will and keep the Will up to date.
If you have any further questions or concerns about making a Will and your current circumstances, please do get in touch with us. We pride ourselves on our breadth of experience and sensitivity in the matter of Wills, Trusts and Probate, and enquiries can be made without any obligation.
Thank you so much once again for your exceptional service and efficiency in preparing both our Wills and our LPAs, we really are most grateful.