Do I Need A Will If I’m Married?

Do I need a Will if I’m married?  The short answer is – YES.

You are likely reading this because you are happily married or in a civil partnership.  And, you have previously not considered what happens when you die in that relationship.  And if you have; you might have thought that because you’re married, your assets will automatically go to your spouse/partner.  But unfortunately, that is a common misconception.

Sharing is Caring

You may share everything as a couple.  But it can get complicated when a spouse/partner dies without a Will in place.  That is where the sharing can fail dramatically.  It gets even more complicated when there are children involved, or it’s not your first marriage.  Despite this downside to ‘happy families’; over half of couples happily muddle along with no Will prepared.  This is a serious risk of making a family tragedy worse than it will be by the death of a partner.  Or worse still, if it involves -both- parties leaving a minor child to fend for himself.  Particularly if he is disabled.

Today, we want to let you know a little of what really happens in an intestate estate  – i.e. to die without a valid Will.  And, what you can do about it.

Dying Without A Valid Will

Whatever your marital status is, if you die without a Will, the statutory ‘rules of intestacy‘ will come into play.  These dictate how your estate is shared out amongst your surviving kin.  It means that married or civil partners, or even other close relatives will inherit your estate as dictated by statute.  Not, as you might have wanted.  In some cases, your estate will pass to ‘The Crown’.

In many cases the deceased’s estate will go to the spouse or the children.  But there is no guarantee of that.  For example, if you are widowed, your children of your previous marriage will be disinherited by your new marriage. It is called ‘sideways disinheritance’.  So, the only way to guarantee what you truly want, is to make your Will.

Unintended Beneficiaries And Tax Allowances

When you die, your estate would normally pay inheritance tax at 40% on anything above the Nil Rate Band(NRB) (currently £325,000 – i.e. the tax band with nil inheritance tax).  However, transfers between spouses are currently exempt from inheritance tax altogether.  Married couples and civil partnerships can pass their NRB on to their surviving spouse.  This means that jointly, there will be no inheritance tax to pay on the first £650,000 of an estate.

But this is only valid if the entire estate is passed to the spouse.  If there is no Will, and the intestacy rules are followed, the estate can pass to other people, who become ‘unintended beneficiaries’.  This means that the spouse loses out, as well as your estate having to pay a lot more inheritance tax than need be.

Children From Previous Marriages

Nearly four in ten marriages in the UK are second, third or even fourth marriages.  And for anyone remarried, there is always the need to balance provision for their current spouse while making adequate provision for the children of the previous relationship.  Without a valid and appropriate Will this is not possible and can lead to claims under Family Law in the courts.  Some options in addition to a Will include:

  1. Mutual Wills

Mutual Wills are agreed in advance, and create a binding agreement between the married couple where the survivor can’t change their Will in the future.  However, because of the complexity of these Wills, they are rarely recommended.

  1. Legacy / Asset Split

You could also arrange to leave a legacy to your children from the first marriage, and allocate the remaining assets to the surviving spouse. This ensures that any previous children are provided for and the surviving spouse is free to do with their estate as they wish.  One of the catches here is that you would need enough assets in your own name to provide the legacy in the first place and it will usually be a bit complex.

  1. Ensure The Marital Home Is Owned As ‘Tenants In Common’

A Will allows a person to deal with solely owned assets or assets held with distinct and separate shares, such as a home. This type of ownership is known as tenants in common, and it allows them to leave their share of the property to their children and ensure they are provided for, while stipulating that the surviving spouse is protected with a right to live in the property during their lifetime.

  1. Leave The Estate Of The First To Die In Trust

This is a fairly popular model for couples with children from previous marriages. In this scenario, any assets from the deceased’s estate are held in a trust for the ultimate benefit for the children. However, while the surviving spouse is alive, he/she can only benefit from the income generated by those assets if it is permitted. This can provide the spouse with the additional income they need, and protects the assets for the children.

In Conclusion

This has been a general information overview only.  Your own circumstances may involve matters not covered above.  At Edmunds and Eve, we understand the importance of the Will upon the family, because each is unique.  That’s why we only offer tailored solutions that help you make the most of the rules around inheritance.  We create the Will that can ensure your estate is distributed exactly as you want.  Also, you get advice on how to reduce tax and fees that will apply after your death.  For more information, please get in touch with one of the team today.

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