Making a Will After a Second Marriage

Section 18 of the Wills Act 1837 provides that marriage (and, by later legislation, civil partnership) automatically revokes a person's existing will. The underlying idea is that marriage is such a significant life change that the law assumes you would want to reconsider your existing wishes, rather than leaving an outdated will from a previous relationship or single life in force by accident.

The problem is that many people simply do not realise this has happened. They made a perfectly good will years earlier, perhaps naming children from a first marriage, then remarry and never think to check whether that will still applies. It does not. If nothing else is done, the will is void, and the intestacy rules take over on death.

There is one way to avoid automatic revocation: making a will that is expressly stated to be made in contemplation of a specific forthcoming marriage. This must clearly identify the intended spouse and state that the will is not to be revoked by the marriage taking place. A will made simply because you are 'thinking about getting married someday' in general terms is not enough; the marriage and the intended spouse need to be specifically identified.

This route is most often used by people who want to lock in specific provision, such as protecting children's inheritance, ahead of a wedding, particularly where there may be a prenuptial agreement or other financial arrangements being finalised at the same time. It needs to be worded precisely, and a solicitor is generally the right person to draft this kind of will.

If you remarry and never made a will in contemplation of that marriage, and you do not make a new will afterwards, your estate on death is governed by the intestacy rules based on your circumstances at death, not your first marriage. This generally means your new spouse receives the personal chattels, a statutory legacy, and a share of the remainder, with the balance shared among your children, but your new spouse's share can be substantial, and your children from a first marriage may receive far less than you would have chosen through a will.

It also means any specific wishes you had, such as gifts to grandchildren, a charity, or particular items you wanted particular people to have, are simply lost, because intestacy makes no allowance for personal wishes at all.

Even once you have a valid new will, the underlying tension does not disappear: if you leave your estate to your new spouse outright, they are free to leave it to whoever they choose in their own will, including children of their own or a future partner, potentially cutting out your children entirely. This is the same sideways disinheritance risk covered in our guide on children from a previous relationship, and it is particularly relevant after a second marriage where both partners may have children from earlier relationships to think about.

Couples in this position often consider a life interest trust, allowing the surviving spouse to live in the family home or benefit from the estate during their lifetime, while ultimately preserving assets for each partner's own children. This is covered in detail in our guide on protecting children from a previous relationship, and it is a solicitor-drafted arrangement rather than something a standard will template can safely deliver.

If, after your second marriage, you simply want to leave clear, specific gifts to your spouse and to your children in agreed shares, without needing to control what happens after your spouse also dies, a well-drafted online will can generally do this well, and it is far better than leaving your estate to intestacy by accident.

Where you want to protect assets for your children while still providing for your spouse's lifetime, or you are making a will in contemplation of an upcoming marriage with specific protective wording, a solicitor should be involved to make sure the drafting achieves what you actually intend.