Guide · rules for England and Wales, checked 2 October 2026
Second marriage: the will, the house and the children
Marrying again is good news. But it quietly changes who inherits the house, and the children from a first marriage are the ones who most often lose out. Most of it can be put right with the right will and one form to the Land Registry. Here is how it works, with a worked example.
1. Marriage cancels an earlier will
In England and Wales, getting married or forming a civil partnership cancels (the legal word is “revokes”) any will you made before. It does not matter what the old will said or who it left things to. Unless you make a new one, you die without a will and the intestacy rules decide.
There is one exception. A will that says it was made expecting marriage to a named person, and that it should not be cancelled by that marriage, survives the wedding. This is in section 18 of the Wills Act 1837.
2. Divorce does not cancel a will, but it changes it
Once a divorce or dissolution is final, the old will still stands, but it is read as if the former husband or wife had died on that date. Any gift to them fails, and if they were named as executor, that appointment fails too, unless the will says otherwise. The rest of the will carries on. Separation on its own changes nothing: until the final order, an estranged husband or wife can still inherit under the will.
3. With no will, the new spouse takes most of it
If you are married, have children and die without a will, the law shares out your estate like this:
- Your husband, wife or civil partner takes your personal belongings, the first £322,000 (for deaths on or after 26 July 2023), and half of anything above that.
- Your children share the other half of anything above £322,000. If a child has died, their own children take that child’s share.
So for an estate under £322,000, the children get nothing at all. That includes children from a first marriage. Your stepchildren get nothing from you under these rules either. And whatever the new spouse inherits is theirs to leave as they wish, usually to their own family. An unmarried partner gets nothing, however long you have lived together.
4. How the house is owned matters more than the will
Most couples buy as joint tenants. When one dies, the whole house passes to the other automatically. This is called survivorship, and it happens whatever the will says. A will that leaves “my half of the house to my children” has nothing to act on.
| Joint tenants | Tenants in common | |
|---|---|---|
| Who owns what | You both own the whole house together | You each own a share, equal or not |
| When one of you dies | The whole house goes to the survivor, automatically | Your share goes wherever your will says |
| Does the will decide? | No | Yes |
| Can the children of a first marriage inherit your share? | Only if the survivor chooses to leave it to them | Yes, if your will leaves it to them |
You can change from joint tenants to tenants in common. This is called severing the joint tenancy. You do not need the other owner’s agreement: you give them a written notice of severance, then send Form SEV to HM Land Registry. There is no fee. It is a big step in a marriage, so talk it through first.
5. A worked example: Linda
Linda is 66. She has two children, Sarah and Mark, from her first marriage. In 2012 she made a will leaving everything to them. In 2019 she married Tony, who has a son of his own. They own a house worth £400,000 as joint tenants, and Linda has £60,000 of savings in her own name.
Linda dies in 2026, assuming her old will still works. It does not. Marrying Tony cancelled it.
- The house: all of it goes to Tony, because they were joint tenants.
- The savings: with no valid will, Tony takes the first £322,000, so he takes all £60,000.
- Sarah and Mark: nothing from their mother, unless they go to court (see section 7).
- Later: Tony can leave the whole house to his own son. If he remarries, his own will is cancelled too.
Nobody did anything wrong. This is simply what the rules do. If Linda had wanted Tony to stay in the house and her children to get her half afterwards, she needed three things: the joint tenancy severed, a new will written after the wedding, and a trust in that will giving Tony the right to live there.
6. The right-to-live trust
The usual answer for a second marriage is a life-interest trust in the will. Your share of the house goes into the trust. Your husband or wife can live there for the rest of their life, or until they choose to move. When they die, your share passes to your children. Solicitors also call it a life interest, a right of occupation, or a property protection trust. Our guide to whether the house should go into a trust explains how this differs from the lifetime trusts sold to “protect the house from care fees”.
- If you own the house with your husband or wife, it only works if you own it as tenants in common, so your share is yours to leave.
- The trustees you choose look after the share. They can usually let the survivor move to a smaller home with the money. Choose people both sides of the family trust.
- The survivor cannot leave your share away from your children.
7. A new husband or wife can still ask a court
Under the Inheritance (Provision for Family and Dependants) Act 1975, a husband, wife or civil partner who feels the will (or the intestacy rules) does not provide for them reasonably can ask a court for more. For a spouse, the court asks what is reasonable in all the circumstances, not just what they need to live on. Children, including adult children, and stepchildren you treated as a child of the family can also apply. Claims must normally be made within six months of the grant of probate or letters of administration.
This is one reason a life-interest trust is popular: it leaves the survivor a home rather than nothing. No wording can stop a claim, but a will that clearly provides for everyone is harder to challenge.
8. Pensions and life insurance sit outside the will
Pension death benefits are usually paid by the scheme, guided by the nomination form (often called an expression of wish) that you filled in with them. Life insurance written in trust is paid to the people named in the trust. Neither follows your will. Marriage and divorce do not automatically change them. After any change in the family, check who each scheme and policy has on file. From 6 April 2027 most unused pensions also count for inheritance tax: see inheritance tax on pensions from 2027.
9. Inheritance tax
- Anything left to a husband, wife or civil partner is free of inheritance tax, provided you both live in the UK long-term (otherwise there can be a limit). That usually includes a right to live in the house left to them in a will trust.
- Unused tax-free bands pass to the survivor for the second death.
- The £175,000 residence nil-rate band applies when the home goes to direct descendants. Stepchildren count, including your husband or wife’s children from their first marriage. So if your will gives your husband or wife a life interest and your children then inherit the home outright when they die, it can still qualify in your husband or wife’s estate, as long as it was their home and their estate is not over the £2 million taper threshold.
Try the inheritance tax calculator to see the figures for your own house.
What to do next
- Find out how the house is owned. Your Land Registry title will say, or run the free check.
- If you married or entered a civil partnership after making your will, treat that will as gone.
- Check every pension nomination and life policy.
- See a solicitor. Wills for blended families, severing a joint tenancy and life-interest trusts need careful drafting, and a solicitor can also advise on the risk of a claim. Many charge a fixed fee.
The House Plan asks about an earlier marriage and stepchildren and flags what they change for your house, so you arrive at the solicitor with the facts in order. If anyone is in or near care, our care fees guide explains how the house is treated.