H&W were married for many years, but then 10 years ago they divorced when the marriage broke down. H did not change his Will at the time because ultimately everything would go to their son. (W is some 25 years younger than H.)
5 years ago H&W re-married. Under normal circumstances, H’s old Will would become invalid on marriage, but is that the case when he is re-marrying the same person?
Since the second marriage, H&W have not lived together and would now be described as separated, although they have not divorced. When H dies, will W be able to inherit as a spouse?
Harris & Trotter LLP
I do not believe the will survives the marriage to the former spouse.
Unless or until H & W are divorced, W will be entitled to the estate of H under intestacy.
In the circumstances, and as a matter of urgency, H should consider making a will if he does not intend W to receive everything.
The will is revoked on marriage irrespective of whether it is marriage for the first time or a remarriage (whether to a former spouse or not).
For intestacy (and IHT) purposes a “spouse” remains a spouse until a decree absolute of divorce is pronounced.
I recall that a decree of judicial separation also used to exclude a spouse from benefitting under intestacy. Does any know if this is still the case?
Even if it is, I believe spouse exemption would still apply for IHT purposes until the decree absolute is pronounced, as Malcolm says.
Whilst I agree with Paul and Malcolm, I am intrigued by Hugh’s final line. I claim no expertise in matrimonial law - but wonder if the second marriage was never consummated whether this could be considered void or voidable - and if so would it still count as a marriage capable of revoking a will [and/or giving rights under intestacy]?
According to the government web site (https://www.gov.uk/how-to-annul-marriage), other than for same-sex couples non-consummation can be grounds for a marriage to be declared void and annulled.
However, until (or unless) it is declared void, such a marriage will continue. A marriage can only be annulled during the joint lifetime of the parties so that if it has not been annulled before death it remains a valid marriage.
Kevin makes an interesting point and one I considered (albeit perhaps not in great detail) sometime ago.
I would assume that the re-marriage would not be void as prescribed in MCA 1973 s.11. However, lack of consummation would cause it to be voidable (MCA 1973 s.12). However, a voidable marriage remains a valid marriage until annulled by a degree of nullity (MCA 1973 s. 16).
Thus, assuming the marriage may qualify as voidable, until it is annulled it would stand and thus revoke any earlier executed will.
Were the marriage to be void ab initio then the will would be revoked without the strict need for any decree of nullity.
I re-stress that I am no expert on matrimonial affairs (not even my own).
I think the sequence would be:
(a) following the divorce 10 years ago H’s will would not have been revoked, but it would have applied as if W had died on the date of the decree absolute; effectively depriving her of any interest under the will. The triggering event in the legislation is the making of a Court order dissolving or annulling the marriage. I can’t find anything which would enable this to be retrospectively reversed just because H remarries W.
(b) on remarriage H’s will would have been revoked in its entirety, thus restoring some interest in his estate to W, albeit under the intestacy rules rather than the will. This remains the position unless or until H either makes a new will or H & W get divorced again.