Q I have a genuine problem which is causing a problem in my marriage. I married my wife over 20 years ago. When we met, she already had three children by a previous marriage, and we had one more together.
I have always treated them all the same, and my current will leaves everything to my wife, or in the event of her death, a straight four-way split between the kids. I have no intention, or plan, to revise this, my wife’s will is a mirror-image.
Over the last few years my wife has become concerned that if she pre-deceases me, I may subsequently remarry ‘some old scrubber’ and if I subsequently die, the joint estate would pass into the hands of such a woman, to the detriment of our children.
We have had several ‘rows’ about it, and divorce is now being mentioned in order to prevent me leaving the kids’ inheritance to this non-existent woman.
As I really don’t want to have to get divorced in order to prevent me doing something that I actually have no intention of doing I was wondering is there any sort of legal device whereby my wife can change her will to prevent her hard-earned money going to some ‘gold-digging slut’, that would not involve me being left homeless after her death? I am hoping you may be able to suggest something.
AN
A Your wife has reason to be concerned. But not because you are likely to fall for and marry someone unsuitable after her death. The possible cause for concern would be that if you did remarry, the remarriage would automatically revoke your current will. This would mean that if you died after remarrying without making a new will – or without making a new will ‘in anticipation of’ your next marriage (ie before you did the deed) – what your child and step-children would get would be decided by the rules of intestacy rather than by you.
Since the new rules introduced in England & Wales in October 2014, if you die leaving a wife, husband, civil partner and a child or children, the married or civil partner gets the lot if your estate is worth £250,000 or less. If your estate is worth more than that, the surviving wife, husband or civil partner gets £250,000, all personal possessions plus half the remaining estate, while any children (including adopted children) get whatever is leftover split between them. Another thing that may worry both you and your wife is that the term ‘children’ under the rules, does not include step-children unless legally adopted. (The rules are different in Scotland and Northern Ireland, and you can find out exactly who would get what if you live in England or Wales)
You may be relieved to hear that divorce isn’t the answer either because the same scenario as above would apply if you remarried after divorce rather than death and failed to make a new will in your children’s favour.
But you are right in thinking that your wife could guard against your children missing out on what you would like them to inherit by making a new will. For example, she could leave her half of the house plus whatever else to your children while giving you the right to live in the property until your death. You could do the same with your will. Whatever you do, it should be to seek expert legal advice as this is a complicated area – especially where step-children are involved.
