The hidden risk of second marriage: When children are unintentionally disinherited

Blended families, where one or both individuals in the couple brings children from a former relationship into the current household, are an increasingly common occurrence in today’s society.

In fact, data from the 2021 Census indicates that approximately 1.1 million dependent children in England and Wales currently live in a blended family household – and that’s saying nothing of the countless adults who have one or more step parent in their life.

Most people assume their assets will eventually pass to their children, but without careful estate planning, a second marriage can alter that path entirely.

If a parent leaves everything to their new spouse, trusting that they will ‘do the right thing’ there is no guarantee that the children from the first marriage will receive anything. The surviving spouse could legally redirect the inheritance elsewhere – whether that be by choice, influence or necessity (e.g. care homes/remarriage).

Previous Wills are rendered invalid upon remarriage

It is also important to note that in England and Wales, entering a new marriage automatically revokes any existing Will – meaning your previous arrangements become invalidated and you’ll need to create a new Will to re-establish them.

If you don’t draft a new Will after you’re remarried, the estate will be distributed according to the intestacy rules, which is the default estate administration process followed by the government in England and Wales.

In practice, these rules prioritise the new spouse and so may not align with your personal wishes, especially if you have children from a previous marriage you’d like to provide for.

Family members may contest under the Inheritance Act 1975

The Inheritance (Provision for Family and Dependants) Act 1975 provides a mechanism for certain individuals – including children from a previous marriage or stepchildren raised by the deceased – to contest a Will if they believe it does not make ‘reasonable financial provision’ for them.

Courts will typically consider various factors when determining the validity of these types of claims, including:

• The applicant’s financial and wellbeing needs
• The needs of current beneficiaries
• The applicant’s relationship to the deceased
• The size of the estate

Barring exceptional circumstances, a claim under the Act must be brought within six months from the date of the Grant of Probate (or Letters of Administration if there was no Will).

How can I balance interests fairly?

To make sure that both your new spouse and children from a previous marriage are fairly provided for, you should explore the following estate planning strategies:

• Wills – you can include an appropriate structure within your Will that seeks to preserve funds/property for the next generation. Your spouse can enjoy the benefit of those assets during their lifetime, but ultimately those assets (or a share of those assets) will be ringfenced for the children
• Trusts – establishing a Trust allows the testator (the person making the Will) to allocate assets in a way that benefits both your new spouse and children from a first marriage. A Life Interest Trust, for example, can allow your spouse to benefit from certain assets during their lifetime with the assets subsequently passing to the children
• Life Insurance Policies – name children as beneficiaries on key accounts like life insurance policies. Life insurance policies, retirement accounts and payable on death accounts can pass directly to named beneficiaries on death, bypassing the spouse and thus ensuring they receive financial support without the risk of a dispute arising over the estate
• Prenuptial or Postnuptial Agreements – consider this arrangement, which can help to clarify financial expectations between spouses from the outset and ultimately protect assets for children from a prior marriage, reducing potential inheritance conflicts
• Gifting – individuals may choose to distribute part of their estate to children while they are still alive, minimising the potential for conflicts after their passing
• Advice – no two individuals’ family circumstances are the same, so it’s critical to seek specialist advice to ensure your arrangements truly serve your needs and priorities. At Price Slater Gawne, our dedicated Wealth Protection team have decades of combined experience working with clients to create bespoke estate planning strategies that serve their family’s long-term interests

Navigating the pros, cons and future implications of these different routes may sound daunting at first glance – but we’re here to help.

Let our experienced estate planning solicitors guide you towards the best possible approach for your needs, ensuring that your wishes comply with legal requirements and provide for all beneficiaries fairly.

Get in touch with our Wealth Protection team today via 03333 058375 or email WealthProtection@psg-law.co.uk to get started.