Second Marriages: What Happens When The Will Forgets A Spouse

The marriage was 15 years. The family home, where they lived together, was in the husband’s sole name. His will, written two decades before they met, leaves the entire £1.2 million estate to his two adult children. She now faces losing her home at 68 years old.

This is not a rare event. It is the predictable outcome of inaction. The shock for the surviving spouse is life-altering. The anger from the children, who believe they are simply honouring their father's wishes, is just as real. This is the point where families destroy themselves, often over assets that are consumed by legal fees.

The Legal Fault Line Testamentary freedom in England and Wales has limits. The assumption that you can leave your estate to whomever you choose is only partially correct. The Inheritance (Provision for Family and Dependants) Act 1975 exists specifically for these situations. It allows a spouse, child, or dependant to make a claim for reasonable financial provision if a will fails to provide it.

The critical distinction is that a spouse’s claim is not limited to basic maintenance. The court assesses what is ‘reasonable in all the circumstances’. A primary factor is the 'divorce cross-check': what would the spouse have been awarded if the marriage had ended in divorce, not death? This often leads to a far more substantial award than the other beneficiaries were expecting. The dispute that follows can cost a family upwards of £100,000 in costs.

A Preventable Outcome This entire situation is avoidable. A properly structured will could have balanced everyone's needs. For this family, a life interest trust would have been a standard solution. It would grant the wife the right to live in the home for her lifetime and receive an income from the investments. Upon her death, the capital would then pass to the children as their father intended. Both parties would have been protected.

These are not complex instruments. They are standard tools of estate planning. Putting one in place requires a conversation and a few hours of work. The alternative is a court case, immense stress, and a broken family. If your affairs have similar elements, we should talk.