How to Ensure Your Children Benefit from Your Will When Getting Remarried?

Hopefully, by now we have hammered the point home on why it is important to have a valid Will in place - partially to protect any children you have, should you die intestate. As per the Laws of Intestacy, the current spouse (and any children you may have with them) will inherit the full Estate if you have not left a valid Will behind. This can force any other children and beneficiaries completely out of their due inheritance.

The only way to ensure that your children are provided for after your death is to keep an updated, valid Will, and to draft a new Will whenever you enter a new marriage. We will briefly recap what the law states regarding marriage concerning inheritance law.

What Does Inheritance Law Say About Marriage?

When you get married, be it for the first or fifth time, your current Will is immediately revoked. Your Will could include a "consideration to marry" clause to keep it valid for the duration of your first marriage, but the Will has to be revised if you divorce and remarry. Otherwise, the Rules of Intestacy come into play, which gives full priority over the current spouse and children.

In light of the above, it is crucial to update your Will if you remarry, especially if there are children involved from a previous partnership. It is not uncommon for spouses to draft a Mirror Will that allows for each other to be named as the sole beneficiary, with a clause that stipulates that should the remaining spouse pass away, everything will be divided equally among any children.

However, when it comes to children outside of the current marriage, you should proceed with caution. If you die first, you have no guarantee that your wishes will actually be carried out. Nothing is preventing the remaining spouse to change their Will after your death, to remarry, have children of their own, and remove your children as beneficiaries. Unfortunately, this is common practice. Even if there is no malicious intent, your spouse may rack up significant debt after your passing, which will be deducted from the Estate when they die. This will inevitably eat away at the inheritance that was due to your children.

How to Provide for Children from a Previous Marriage

As illustrated, if you wish for your children from a previous relationship to be included in your Estate, you need to draft a solid Will to protect their interests. Standard and Mirror Wills may not be sufficient, considering that your spouse can change their Will after your death to suit their agenda. Luckily, there are options available to you if you wish to ensure that both your current spouse and children are provided for, without causing much fuss from either party.

This is where Trust Wills come to the rescue. Numerous types of Trusts can be included in your Will, but essentially, Trusts provide security against the assets you wish to be distributed. Your spouse will still benefit from your Trust during their lifetime, but after their passing, the assets must be distributed to your children (or any other beneficiaries you may have nominated, for that matter). Assets that are placed in a Trust are kept separate from your spouse's assets, so it cannot form part of their own Will, thus it cannot be given away.

What Are the Rights of Estranged Children?

Sometimes, the Will may be contested, even if is legally valid. Children can contest the Will, even if they are estranged.

Should you die intestate, the law makes no distinction between children, whether or not they had a close relationship with you. Whatever remains of the Estate threshold after the current spouse received their lion's share will be divided between all children, as per the Law of Intestacy.

Should your Will be considered valid, England and Wales allow for testamentary freedom. You are under no obligation to include any specific person in your Will. You can leave a portion of the Estate to one child, and exclude another if you so wish. However, as a counterbalance to this freedom, the law also allows certain persons to dispute the Estate if they believe they have a valid claim. This includes estranged children or beneficiaries written out of the Will who would have otherwise been entitled to an inheritance. Foster or stepchildren also have the right to claim against the Will, whether or not they have been included. This provision applies to both valid Wills and dying intestate.

The Court will first and foremost consider if the Will was fair, so if your Will is legally solid and carefully considered to give dues where applicable, then the likelihood of a claim against the Estate will be less successful.