Wills: A Spouse’s Rights

We all want to make sure our loved ones are well taken care of after we’re gone. And if you’re married, you might have spoken to your husband or wife about how you’d like your assets to be shared after your death.

But what does the law say on spouses’ rights when it comes to making Wills and handling the distribution of estates? We’ve answered some of the most commonly asked questions in this guide.

Does marriage override a Will?

When you get married in England or Wales, any existing Wills automatically become null and void. This means that if you do not make a new Will after your marriage, the rules of intestacy will decide how your estate is shared when you pass away.

There is one way around this, though – known as a Will ‘in contemplation of marriage’. Under the Wills Act 1837, engaged couples can write up Wills that reference their upcoming nuptials and their wish for the Will to remain valid.

An experienced solicitor can help you to draft up a Will in contemplation of your marriage, so you’ll have the reassurance of knowing that both your fiancé’s wishes and your own are legally protected.

Will my spouse automatically inherit everything when I die?

If you die with a legally valid Will in place, the terms you’ve set out in the document will dictate what your spouse inherits.

But if you die without a Will, the law will decide how your estate is distributed under the rules of intestacy. This means that if you don't have children or grandchildren, your entire estate will go to your surviving spouse.

If you have children and the value of your estate is more than £322,000, your spouse will receive the first £322,000 and half of the remaining estate. The rest will then be split amongst children, grandchildren and great-grandchildren.

As spouses are prioritised by the laws of intestacy, you might have wondered whether it’s still worth writing a Will – particularly if you’re planning to leave your estate to your spouse anyway.

But drafting a Will is still the best way of ensuring the people you want to inherit from you – whether it’s your wife, husband or children – do. By making your wishes legally known, you’ll have the confidence of knowing your estate will be distributed exactly as you’d like it to be.

Can I make a Will without my husband or wife knowing?

Any adult can make a new Will without telling their spouse, but this is not very common.

If you intend to disinherit your wife or husband by making a new Will, you’re free to do so. But it’s important to note that your spouse would be entitled to challenge your decision under the Inheritance (Provision for Family and Dependants) Act 1975.

Under this Act, your spouse or even a former wife or husband could make a claim against your estate. So even if they are removed from your Will, they could still benefit from the assets you leave behind.

A recent example of this in the news was the case of Harbans Kaur. In 2021, Kaur was informed that only her sons would benefit from her late husband’s Will. She contested this on the basis that ‘reasonable provision’ had not been made for her and the case was won in February 2023.

How can a solicitor help?

Making a Will can feel like a complicated process. But an expert Wills and Probate solicitor can help you set out your wishes in a way that leaves little room for disputes or confusion after your death. So you’ll have the reassurance of knowing your significant other will be looked after when you’re gone.

To find out more about the services we offer, get in touch with our friendly advisors. You can call us on the number at the top of the screen or start your enquiry online.