Many married couples assume they do not need to make a Will because their spouse will automatically inherit everything if they die. However, this is not always the case under UK law. Having a Will is one of the most important steps you can take to protect your family’s financial future and ensure your wishes are followed. So, do you need a Will if you are married? In this article, we look at why having a Will is important for married couples, what can happen if you die without one, and whether a spouse automatically inherits everything.
Do married couples need a Will?
In England and Wales, having a Will removes uncertainty about what happens to your estate when you die. Being married does not remove the need for a Will. Without one, the intestacy rules determine how your estate is distributed, which may not reflect your wishes or provide for your spouse and other family members as you intended.
For married couples, making a Will can form an important part of estate and Inheritance Tax planning. Depending on your circumstances, a carefully prepared Will can help make use of available tax exemptions and allowances.
Currently, the Inheritance Tax nil-rate band is £325,000 per person. Married couples and civil partners can generally transfer any unused portion to the surviving spouse or civil partner. A residence nil-rate band of up to £175,000 per person may also be available where a qualifying residence is passed to direct descendants, subject to the relevant conditions. This means a qualifying couple could potentially have up to £1 million of combined allowances available.
Common misconceptions about wills and marriage
A common misconception is that marriage automatically means everything you own will pass to your surviving spouse. This is not necessarily the case. If you die without a valid Will, the intestacy rules will determine who inherits.
Another misconception is that owning assets jointly removes the need for a Will. While some jointly owned assets may pass automatically to the survivor, this does not apply to everything you own. A Will remains important for assets that are held in your sole name and to detail what happens to them on death.
Parents may also assume that their children will automatically be protected if they die. A valid Will can allow parents to appoint guardians for minor children and make clear arrangements for how and when their children should inherit. Without a Will, the courts will step in to legally appoint a guardian, meaning the courts will decide who raises any children.
Does my spouse automatically get everything?
It is a common misconception among married couples: “If I die, everything will automatically go to my spouse.”
In England and Wales, the intestacy rules determine who inherits an estate when someone dies without a valid Will. While a surviving spouse or civil partner has significant rights, they may not inherit the entire estate, particularly where there are children.
Intestacy – who inherits if someone dies without a will?
If someone dies without a valid Will, they are said to have died intestate.
Under the intestacy rules:
Your spouse may not receive the entire estate: If you die leaving a spouse and children, your spouse or civil partner will generally receive your personal belongings, the first £322,000 of the estate and half of anything remaining. The other half will be distributed between your children equally.
Children may inherit part of the estate: If there is no surviving spouse or civil partner, children generally inherit the estate and likewise, if you die without leaving children, the spouse will inherit.
Other relatives may inherit if there is no spouse or children: The estate passes through a set order of priority being parents, siblings, and then distant relatives to include grandparents, uncles and aunts.
The Crown may ultimately inherit: If there are no qualifying relatives, the estate can pass to the Crown.
Your personal wishes may not be met: Under the intestacy rules, unmarried partners, stepchildren, friends and charities are not automatically entitled.
What happens if a married couple does not have a will?
Many people assume that if they own property and joint bank accounts with their spouse or civil partner, everything will automatically pass to the survivor. While this can be the case for some jointly owned assets, it is not true for everything.
When a spouse may not inherit everything
Property can generally be owned as either joint tenants or tenants in common. Where property is held as joint tenants, the deceased’s interest will usually pass automatically to the surviving owner. Where property is held as tenants in common, each person owns a separate share, which does not automatically pass to the survivor. Instead, that share passes under the terms of a valid Will or the intestacy rules. It is therefore important to check how your property is owned and whether this matches your wishes.
Joint bank accounts will also usually pass to the surviving account holder, but sole accounts, savings and ISAs may form part of the estate and need to be dealt with under the terms of a Will.
Why you should update your will after getting married
Updating your Will after marriage is extremely important. In England and Wales, marriage will generally revoke an existing Will, unless the Will was made in contemplation of marriage and intended to remain effective after that marriage.
This means that if you marry after making a Will, you should consider making a new Will to ensure your wishes remain clear.
- Marriage will generally revoke an earlier Will.
- Your spouse may not inherit as you intended if there is no valid Will.
- Updating your Will ensures your estate plans remain clear.
- It allows you to make provision for your spouse and any future children.
What about cohabiting partners?
Cohabiting partners do not have the same automatic inheritance rights as married couples or civil partners. The idea of a “common law marriage” is a myth: simply living together does not give an unmarried partner the same legal status as a spouse. If one partner dies without a Will, the surviving partner will not inherit the estate automatically and may need to make a legal claim. How jointly owned property and other assets are held can also affect what happens after death. For unmarried couples, making a Will is therefore particularly important, providing clarity over who should inherit and helping to protect the surviving partner.
When married couples should review or update their wills
Wills should be reviewed regularly and whenever there is a significant change in your circumstances. As a general guide, consider reviewing your Will every five years or sooner if your circumstances change.
Things that may prompt a review include:
- Marriage or remarriage
- Divorce or separation
- Having or adopting children
- Purchasing property
- The death of someone named in your Will
- Changes in your financial circumstances
- Changes in the law that may affect your estate planning, such as Inheritance Tax thresholds or pension rules
How can Goughs help?
Seeking legal advice when preparing a Will can help ensure it is valid, reflects your wishes and takes your individual circumstances into account. If you would like to find out more about how Goughs can assist you in making a Will that works for your circumstances, particularly if you are married or have children. Get in contact with one of our team today and we can help start the process.
