What does a second marriage typical Will look like? Many clients who are married for the second time tend to put off making a Will, because it seems too complicated to try and balance the interests of their new spouse with those of their children from their first marriage, and also potentially those from a new relationship or marriage. Everyone tends to have the same concern; “How can I provide for my second spouse comfortably during their lifetime, but make sure that my own children inherit my assets on my spouses’s death?” Leaving assets to your second spouse outright in this situation is a roll of the dice that many testators would prefer to avoid. Although many second spouses no doubt do the right thing either way, there are those who might not.
Remarriage revokes existing Wills
It is important to remember that marriage revokes a will, and so any pre-existing Wills that you may have had in place are likely to have been revoked by your remarriage, unless they were explicitly made “in contemplation of marriage”.
What kind of Will should I make after my second marriage – is there such a thing as a second marriage typical Will?
The good news is that the law offers an excellent solution to dealing with this, which can be tailored to the individual family circumstances. A second marriage typical Will would involve putting in place what is called a life interest trust for the benefit of the surviving spouse, on the first death. This allows the surviving spouse the right to receive the income from the estate of the first to die for their lifetime, and it also entitles them to the right to live in the marital home, for life. On the second death, the capital belonging to the first to die has meanwhile been ring-fenced within the life interest trust for the ultimate benefit of their children.
A life interest trust ensures that you can leave your second spouse comfortably off during their lifetime, and ultimately ensures that your own children will inherit the capital. It gets around the concerns people may have about the worst case scenario of their spouse or partner meeting somebody else after their death, and eventually leaving all of their – and also all of your – assets to them. The concern is then that your assets could end up in completely the wrong hands, and not ultimately pass to your children, as you have always intended.
Should we be joint tenants or tenants in common?
In order for this arrangement to work, it is extremely important that the couple own their house as ‘tenants in common’ and not as ‘joint tenants’, otherwise the half share of the house belonging to the first to die will automatically and instantaneously pass to the survivor outright on the first death, bypassing the terms of the Will and negating the asset protection benefits of the Wills. If you are currently joint tenants, your joint tenancy can be severed when you are making your Wills.
What about inheritance tax planning with a second marriage typical Will?
A life interest trust can be used for inheritance tax planning purposes very successfully where there is a second marriage. It can be a useful way to remove assets from the joint estate completely free of inheritance tax, if the surviving spouse already has sufficient assets, and does not need to benefit from all of the assets in the estate belonging to the first to die.
The surviving spouse would usually be one of the trustees of the trust, which gives them a say in how the trust is run, often along with the children of the first to die, who will also be the capital beneficiaries.
If the surviving spouse did not need the income from all of the assets then the trustees could agree to terminate his or her interest to some extent in the residue which would allow assets or capital to pass out to the children. When the assets pass into the trust for the surviving spouse, the transfer is ‘spouse exempt’ for inheritance tax purposes and so there is no inheritance tax to pay. When the surviving spouse’s life interest is partially terminated, this is a potentially exempt transfer by the surviving spouse for inheritance tax purposes, so as long as they survive the termination by seven years, the assets will pass to the children of the first to die completely inheritance tax free. In larger estates this can be a very useful inheritance tax planning device.
Should I remarry for inheritance tax purposes? How many inheritance tax free nil rate bands can we have?
If one or both of you has been widowed previously and you have since remarried, it may even be possible to take advantage of not two but three or even four inheritance tax free nil rate bands (currently £325,000 per person). This is because you may each be able to benefit from your predeceasing spouse’s unused nil rate band.
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Chiltern Wills is a friendly, professional Will writing business based in Beaconsfield, run by former London solicitor Rebecca D’Arcy. We advise clients both locally in Buckinghamshire and all over England & Wales, via virtual meetings using Skype and FaceTime. Our low overheads mean we are able to charge our clients substantially less than typical firms of local solicitors.