What is the law around marriage and Wills

It’s a popular refrain that ‘love and marriage’ go together, but when it comes to Wills and marriage the water gets somewhat muddied.

When planning their futures, many people don’t realise how marriage can affect their Will. The rules in England and Wales are clear but often overlooked - and the consequences can be significant if you don’t act.

Does marriage revoke a Will?

Under section 18 of the Wills Act 1837, a valid marriage generally revokes any Will made before that marriage. Legally this means that once you marry your existing Will is no longer valid unless: the Will was made in contemplation of that specific marriage, and it explicitly states this intention.

If your Will is revoked by marriage and you pass away without creating a new Will, your estate will be distributed under the rules of intestacy.

In a survey by charity consortium Will Aid it was found that 56% of respondents were unaware of the intestacy rules.

Dying intestate

Dying intestate (without a valid Will) means your estate is divided according to statutory rules, which prioritise your spouse or civil partner and children. However, these rules may not reflect your personal wishes.

For example: your spouse may not inherit everything if you have children from a previous marriage. Unmarried partners, stepchildren, and friends are excluded, and the common law myth is actually just that, a myth.  Even if you have lived together for years your partner would not inherit, which can lead to inheritance and will disputes or unintended hardship for loved ones.

Legal right in civil partnerships and same sex marriages

A civil partnership provides the same legal rights and responsibilities as marriage, but without the vows associated with it and offers legal recognition and protections such as rights to inheritance, pensions, and tax benefits. The partnership is formed by signing a civil partnership document in front of witnesses and is ended by dissolution, not divorce.

The same rules apply to civil partnerships and same-sex marriages, entering into either revokes an existing Will unless it was made in contemplation of that specific union.

However, unlike marriage, divorce does not revoke your Will.

“Whenever there is any change in your personal circumstances it is always a good idea to speak with someone who specialises in this area of the law and clients come to us genuinely surprised to realise that a Will written before their marriage is no longer valid, or that divorce does not automatically mean the Will is invalid, ” said Private Client solicitor, Joanne Jones.

“Amidst exciting wedding plans it might not seem like a priority, but I would advise anyone to add it on their tick list of things to do in the lead up to the big day. You may wish to review your Will when marrying or remarrying to ensure your wishes are up to date.”

“You can also make a Will in contemplation of marriage if you’re engaged and want your Will to remain valid after your wedding.”

“Similarly working with our family team we always advise clients to update a Will after divorce or separation to avoid leaving an estate in limbo or making sure those you want to inherit benefit from your estate,” she added.

How to avoid a inheritance dispute?

Having a valid, up to date Will is the best way to protect your loved ones and avoid costly disputes. If you are getting married, remarried, or divorced, our private client solicitors can guide you through updating your Will so that your wishes are respected.

How can we help?

For legal advice on making a valid will, Lasting Powers of Attorney or estate planning contact our private client solicitors on 0161 785 3500 or email enquiries@pearsonlegal.co.uk 

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Please note that the information and opinions contained in this article are not intended to be comprehensive, nor to provide legal advice. No responsibility for its accuracy or correctness is assumed by Pearson Solicitors and Financial Advisers Ltd or any of its members or employees. Professional legal advice should be obtained before taking, or refraining from taking, any action as a result of this article.