Marriage

1837

Were you born before, during or after 1837? After? Good.

Marriage automatically cancels previous wills. This precept dates from the Wills Act of 1837. You can marry and keep your old will provided that your will was made recently and in it you express your intention to marry or become a civil partner with a specific person.

The 1837 law is alive and well - and it means what it says. When you say 'I do!,' your previous will and codicils become null and void.

However...

However, you can make a will stating that you intend to marry and you want this will to remain valid after that marriage. You should name your intended spouse/civil partner in the will, and tie the knot sooner rather than later - six months is better than six years. In 1935, a man drafted his will benefitting "my wife," although they were only living together and had not formalised their union. They did marry - 25 years later, in 1960. Too long, said the judge, nullifying the will (Re Gray’s Estate [1963]).

If you do make a will in contemplation of marriage and the marriage does not go ahead, or you marry someone else (or a few decades have passed), make a new will pronto.

Quickie Case Study: Peter Ikin - Contemplating Marriage?

Peter Anthony Ikin was a wealthy pop-music executive. He made a will in 2002 and, after his death, a photocopy of a 2008 will surfaced.

The 2008 will has four succinct clauses. One clause revokes all previous wills, and another asserts his country of domicile. The two remaining clauses address marriage/civil partnership.

• 2) Direct that this, my last will and testament shall not be revoked by neither subsequent marriage, civil union partnership nor adoption.
• 4) Give and bequeath to Alexandre Renaud Marcel Despallieres the entirety of my estate as a sole beneficiary.
  

Ikin and Despallieres became civil partners subsequent to the date of the 2008 will, but a judge ruled that this civil partnership nullified the will.

The judge held that the will did not establish that Ikin intended to form a civil partnership specifically with Despallieres. The 2002 will was reinstated. Full story

Spouses/Civil Partner Domicile Small Print

Spouses and civil partners can give assets to one another during their lifetimes or upon death and not pay IHT. There is no limit to the amount that can be transferred in this manner. However, the recipient must be domiciled in the UK.

The rule varies if one or both spouses/partners is not domiciled in the UK.

This spouse/civil partner exemption means that the recipient's nil rate band can be significantly increased - doubled, in fact.

However, if the full amount is transferred, it means that the person who died has not used any of their nil rate band - and this may not be tax-efficient.

The transfer occurs on the second death - and that death must have occurred on or after 9 October 2007.

Another date is important, although it is some 35 years distant: if the first spouse died before 1975, the full nil rate band may not be available to transfer.

The amount that is transferred is a percentage, not an actual monetary amount - and as it is applied on the second death, the difference can be important.

The tax man provides this hypothetical example on the HMRC website: a husband dies at a time when the nil rate band is £300,000. He has not made any lifetime gifts, so his threshold is at its maximum. His wife dies when the threshold is £312,000, but her estate has more than that amount due to her inheritance from her husband. However, her husband's threshold is now transferred to her - and that threshold is 100 per cent of the current nil rate band of £312,000.

Married, no will, now what?

If you are married and have no will, either because you never made one or because you revoked it - or it was nullified by remarriage - you die intestate.

If you want your spouse to inherit everything, you must make a will. By the rules of intestacy, spouses and civil partners will inherit everything only if the estate is small. If it is sizeable, the spouse automatically inherits only part of it - and the amount is fixed by law. The Intestacy section provides more detail.

"Common-Law Marriage"

Many people mistakenly believe that merely living together for a certain period of time confers legal rights akin to marriage. In fact, there are no squatter's rights in matters matrimonial.

However, if you have lived with someone for at least two years who then dies, you might be entitled to a share of the estate.

Common-law marriages were legally recognised hundreds of years ago. and Scotland still recognises "marriage by custom and repute." Nowadays, "civil partnerships" are recognised in law, but such relationships are sealed by official declarations and documents, not merely by the fact of sharing a home.

Common-law partners can NOT apply for probate. Civil partners can.