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Making a will after a second or subsequent marriage

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Posted in: Family and children, Wills and probate
Date published: 23/04/2019
Making a will after a second or subsequent marriage

Without a valid will that says otherwise, your spouse may inherit most if not all of your assets on your death and any children you have from previous marriages could be left with little or nothing.  This is why more and more cases are being brought before the courts by children who have not been provided for under the will of a parent.

If you are in your second or a subsequent marriage, having an effective up-to-date will is vital to protect your assets, your children and your extended family.  Partner, Iwona Durlak, wills, trusts and estate planning solicitor with IMD Solicitors in London ans Manchester explains what you need to consider if you have been married more than once.

The problem with a typical will

It can be difficult discussing wills with your partner when there are children from a previous marriage to consider, particularly if you each want your own flesh and blood to benefit under your will when you die. The result may be an inadequate will.

A common position is that the surviving spouse typically inherits everything, while children only inherit the estate on that spouse’s death. The risk here is that after you pass away, your surviving spouse could then change their will to exclude your own children to benefit others.

If you are in a second or third marriage, you need to consider how you want your estate divided up when you die. How do want to ensure your spouse is provided for, while also protecting and providing for your children? What about any children you may have in this marriage?  Do you want to leave something to, for example, an ex-partner and to other extended family members from a previous marriage?

Depending on your particular circumstances, a flexible will could be more effective in protecting your estate and your long-term wishes by, for instance, ring-fencing some assets so that they would not form part of your surviving spouse’s estate when they eventually pass away.  This would mean any change in their will after your death will not affect those assets – they will still pass under the terms of your will. 

How a flexible will can work

Though you could leave lump sums to your children in your will to ensure they are provided for, there is no guarantee the cash will be readily available on your death. There are also tax implications to consider, because the more money you leave directly to your children the more inheritance tax your estate may have to pay. 

One potentially tax-efficient solution is to use a will trust under which your surviving spouse would have the right to stay in the matrimonial home, and possibly to receive the income from and interest on your assets when you die.  No inheritance tax will be charged on the trust assets although income tax may be payable on the income.   Then, on your spouse’s death, the property and assets will pass to each of your children and anyone else named in your will.  Only on your spouse’s death might inheritance tax be payable. 

If you are about to remarry

If you are planning to remarry, any will you have automatically becomes revoked when you get married, unless you make a new will specifically in contemplation of your impending nuptials.  This means that if you were to die first without a fresh will, your new spouse will inherit your entire estate up to £250,000 to the exclusion of your children from any previous relationship.  Only the amount exceeding £250,000, if any, will pass to your children to be split equally.

What you should do now

No one knows what the future holds and we advise making a will or reviewing any existing will whenever your circumstances change significantly – and certainly in the event of engagement, marriage or divorce.

For further information, please contact Iwona Durlak Head of Wills & Probate team on 0330 107 0107 or email  IMD Solicitors has offices in London, Manchester and Birmingham.

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.

Published by:

Iwona Durlak Senior Partner

Family Law – IMD Solicitors LLP

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Example of cases we have dealt with:

F v F - Acted for a German husband in a complex financial remedy matter. He decided to instruct IMD Solicitors after he had lost trust in his previously instructed solicitors and feared that he would not achieve a favourable outcome from the proceedings. The relevant assets were spread across the globe with some located in the UK (including a multi-million pound business), Gibraltar, Spain, Dubai, and Poland. The overall value of assets exceeded £24 million. The husband had been cut off from the matrimonial assets and excluded from control of the business that had been established by his family. The case involved the instruction of numerous experts, for business valuations, Capital Gains Tax reports, and opinions on the enforcement of orders in foreign jurisdictions, and dealing with several applications, including applications for orders to freeze assets, prevent the disposition of assets, for the joinder of parties, and to litigate conduct issues. The final result exceeded the client’s expectations.
L v L - We were instructed by a mother in a complex international children matter. She was required by orders of the UK courts to return the child to the UK from Poland. She had travelled with the child to Poland but, following unsuccessful application to extend her stay there in August 2017, she decided not to return to the UK because the child disclosed sexual abuse by a member of the paternal family and the father. In September 2018, the Polish court dismissed the father’s Hague Convention application for the child's return on the basis of Article 13(b), a decision which the father appealed. In March 2019, the father applied to the UK High Court for an order for the child’s return pursuant to the procedure set out in Article 11(6) – (8) of the Brussels IIA Regulation. Despite the father's unsuccessful Hague Convention application in Poland, the UK court ordered the return of the child. Article 11 does not allow the court of the returning country much discretion. After all of this, the mother instructed IMD Solicitors to apply to discharge the orders of the UK Court for the return of the child. Even in the face of the fact that most applications to discharge such return orders fail, we succeeded. We are currently awaiting a decision in the UK courts on a further application for the transfer of jurisdiction to the Polish courts where the mother resides with the child.
G v P - We represent a Spanish mother in respect of an urgent application for a Child Arrangements Order and Specific Issue Order in the UK seeking the relocation of the child to Spain. This was after the return of the child to the UK under Hague Convection proceedings which this mother lost in Spain. She was asking for an order for the relocation of the child back to Spain and an urgent interim Child Arrangements Order to allow her to see the child pending the final outcome of the UK proceedings. IMD successfully argued that, regardless of the return of the child to the UK under the Hague Convention, the mother should be allowed unsupervised overnight contact with the child. We were delighted to be able to secure her contact with the child for Christmas and she said that it was the best Christmas gift she could have wished for. The outcome of the application for the relocation is pending.
S v V - We currently represent the father in Child Arrangements Order proceedings issued by the mother in relation to variation of a UK order made in the face of numerous other international proceedings. He is an Italian National who has been living in France for the last 20 years and the mother is a Lithuanian national. The child is now 11 years old and proceedings concerning the child have been ongoing in various jurisdictions for the majority of the child`s life. Contested divorce proceedings including child arrangements took place in Monaco. The French Court and authorities were also involved, and various proceedings had been ongoing between parties since 2013 in France and Monaco. The parties’ divorce was pronounced in Monaco. Thereafter, in December 2020, the mother submitted an application to relocate to England with the child, and the relocation took place in June 2021. Upon relocation, the she lodged a child arrangement order application, seeking to register a judgment made in Monaco and to vary the same in respect of the contact arrangements between the father and the child. The father seeks for the child’s return to Monaco. Due to the parties’ mutual allegations and the associated international elements, various authorities and courts that have been involved in the case, the local authority has become involved with the family and a guardian has been instructed to represent the child in the UK proceedings. At present, these proceedings in England are ongoing and the outcome of the professional reports regarding the family are awaited.  
P v P - We have acted for the Respondent Husband in relation to the financial remedy proceedings in the UK. The parties had various assets in the UK and Romania consisting mainly of the portfolio of properties but conduct issues were raised by the Wife due to a business of the Husband over which she had lost control and her allegations of dissipation of assets. The value of assets excluding the business were in a region of £3 million. 
K v K - We act in financial remedy proceedings for a wife who is a Polish national. The matter's complexity mainly comes from a dispute between the parties around land in Poland. Its value was initially in dispute but was then assessed by a joint expert to be in the region of half a million pounds. The total assets in this case are estimated to be worth over £1 million. The land in Poland is a subject to contract with a third party and is being leased as a photovoltaic (solar) farm. The division of the land to achieve an equal share of the assets is complicated due to the contract in place and plans for the future use of the land. Currently the parties are awaiting a final hearing but efforts are being made to reach a settlement with the aid of alternative dispute resolution and in order to save the parties money and avoid further delays.
R v O - We acted pro bono and worked together with a law firm in Poland to ensure that the Costa Rican Mother regains access to her child. The Mother's only child was abducted from the UK in 2014. The Mother was successful with the abduction case and the UK family courts ordered the return of the child. The orders were recognised in Poland but unfortunately due to various issues with the Mother's immigration status and court's delays in Poland, the orders were never enforced. The Mother was facing removal from the UK and prospects of never seeing her child again. We have corresponded with various courts in Poland dealing with international abduction matters and we decided that an application for contact should be issued rather than any proceedings for further enforcement of the orders, as the Mother had not seen the child for around 7 years. At the same we secured the Mother's stay in the UK making successful outside of immigration rules application to extend her stay. We now receive regular photos from the Mother with her daughter, as face to face contact is taking place. We helped to secure an order of the Polish courts for the Mother to see the child regularly in person, whilst when she instructed us she was facing a prospect of never seeing her child again and being deported to Costa Rica.

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