Your question: “What happens if I die, was previously married and had a Will but I am now remarried and have not written a new Will? I have children with both my previous partner and my current partner.”
Answer: When you got married, your Will was automatically revoked. ‘Revoked’ means that it was cancelled, so that the Will is no longer valid.
The only time this will not be true is if you make a Will that specifically states it is made in contemplation of marriage to a specific person (Wills Act 1837, Section 18) which clearly does not apply here.
Therefore, at this time, you do not have a Will and your estate will pass in accordance with the rules of intestacy. This useful intestacy wizard, provided by the Government, will help you work out who will get what.
If your estate is worth less than £270,000, the entire estate will pass to your new spouse.
If your estate is worth more than £270,000, your new spouse will keep all the assets (including property) up to £270,000, and in addition, all the personal possessions, whatever their value.
The remainder of the estate will be shared as follows:
- the new spouse gets half of the remainder.
- the other half is then divided equally between the surviving children.
If a son or daughter (or other child where the deceased had a parental role) has already died, their children will inherit in their place.
Note that ‘children’ include legally-adopted sons or daughters but not stepchildren. So if your new spouse has children from a previous relationship, they will not inherit.
The above rules work the same in civil partnerships.
Note that although the above rules of intestacy are the starting point in dividing up your estate, it is possible for certain individuals who would not otherwise inherit under the rules to make a claim for ‘reasonable financial provision’. Only certain people can make a claim and there are strict time limits. The classes of people who may claim include:
- your former spouse provided that they have not remarried (or entered into a civil partnership); and
- someone who was treated as your child (including step-children).
There are other classes of people who can claim as well – see our guide to reasonable financial provision claims for more details.
When it comes to dividing up your assets, Courts give a great deal of weight to the principle of testamentary freedom – that is, you are entitled to leave your assets to who you choose. In the event that a claim is made, in the absence of a Will, they have no evidence of how you would have wanted your estate to be divided. It is therefore strongly advisable to make a Will as evidence of your wishes.
Another consideration is that if you die and your spouse remarries, their new partner will be first in line to receive the money that they inherited from you. Even if they do make a Will, it is unlikely that they will leave anything to the children of your previous marriage. So if you don’t make a Will (which can include Grandparent Will planning), your estate can pass sideways outside of the family and your children/grandchild can miss out entirely.