Protecting Your Children’s Inheritance in a New Relationship (UK)

When you meet someone new later in life, it’s natural to want to share your life with them. But many people over 50 also want to make sure that their home, savings and possessions eventually pass to their children and grandchildren. Adult children often worry about this too, and it can become a source of tension in a new relationship.

Many couples do find arrangements that look after a new partner and protect children’s inheritance at the same time, usually with help from a solicitor. This guide explains how inheritance generally works in the UK when you marry, live together or stay living apart, the situations that commonly cause problems, and the legal tools solicitors typically discuss, from wills and trusts to prenuptial and cohabitation agreements.

This guide gives general information about the law in England and Wales, with notes on Scotland. It’s meant to help you understand the terms and prepare questions. Inheritance planning depends entirely on your circumstances, and only a solicitor or qualified financial adviser can tell you what suits you.

Why inheritance becomes an issue in later-life relationships

In a first marriage, most couples leave everything to each other and then to their shared children. In later-life relationships, things are more complicated:

• You may each have children from previous relationships.
• One of you may own a home and substantial savings, while the other has less.
• You may each want your own assets to pass to your own children.
• Adult children may worry that a new partner will inherit the family home or their parent’s savings.
• A new partner may worry about being left with nowhere to live if you die first.

Without planning, the law may not produce the result either of you wants. The most common problems happen when people marry without making a new will, or live together without any will at all.

What happens if you marry or enter a civil partnership

Marriage cancels your existing will (England and Wales)

In England and Wales, getting married or entering a civil partnership automatically revokes (cancels) any will you made before, unless the will was clearly made in expectation of that specific marriage. This surprises many people.

So if you made a will after your divorce or bereavement leaving everything to your children, and then remarry without making a new will, that will is cancelled. Your estate would then pass under the intestacy rules, which may give much of it to your new spouse.

In Scotland, marriage doesn’t revoke an existing will. But Scotland has its own rules, known as “legal rights”, which give a spouse and children certain rights to part of the estate regardless of the will (see below).

What happens if you die without a will (England and Wales)

If you die without a valid will in England and Wales, and you’re married or in a civil partnership, the intestacy rules usually give your spouse or civil partner:

• all your personal possessions;
• the first £322,000 of your estate (the “statutory legacy”); and
• half of anything above that.

Your children share the other half of anything above £322,000. If your estate is worth less than £322,000, your spouse may inherit everything and your children nothing, although jointly owned assets may pass differently.

If you have no children, your spouse or civil partner usually inherits everything.

Inheritance Tax

Assets that pass to a spouse or civil partner are generally exempt from Inheritance Tax, and any unused nil-rate band can often be transferred to the surviving spouse. This can be an advantage of marriage for some couples. But it doesn’t help if you want assets to go directly to your children. Inheritance Tax rules are complex and change over time, so how they would apply to you is a question for a solicitor or qualified tax adviser.

What happens if you live together without marrying

Many later-life couples choose to live together without marrying. In England and Wales, unmarried partners have far fewer automatic rights than married couples. There’s no such thing as a “common law” husband or wife.

• No automatic inheritance. If you die without a will, an unmarried partner inherits nothing under the intestacy rules, however long you’ve lived together. Your estate would usually go to your children.
• Jointly owned property. If you own your home as “joint tenants”, it passes automatically to the survivor, regardless of your will. If you own it as “tenants in common”, your share passes under your will.
• Claims against your estate. An unmarried partner who lived with you as a couple for at least two years before your death, or who was financially dependent on you, may be able to make a claim against your estate under the Inheritance (Provision for Family and Dependants) Act 1975. Children, including adult children, can also make claims in some circumstances.
• No Inheritance Tax spouse exemption. Assets you leave to an unmarried partner may be subject to Inheritance Tax.

This can create two opposite risks. Your partner could be left with nowhere to live if you die without providing for them. Or, if you leave everything to your partner, your children may inherit nothing. A will is how people normally decide what happens instead. A solicitor can explain how one would work for you both.

In Scotland, a cohabiting partner has limited rights. They may apply to the court for financial provision from your estate if you die without a will, but they must do so within six months of the death. Take Scottish legal advice.

What happens if you live apart together

Many later-life couples keep their own homes. Our guide to living apart together after 50 explains why. From an inheritance point of view, this is often the simplest arrangement:

• Each of you keeps your own home and assets.
• Each of you can leave your estate to your own children.
• You can still leave gifts to each other in your wills.

Wills still matter if you live apart, because they decide who inherits. And in England and Wales, marrying later would cancel any existing wills.

Legal tools a solicitor may discuss with you

These are the main legal tools used in later-life relationships. They are described here so you understand the terms. Whether any of them suits you, and how it should be set up, is for a solicitor or regulated financial adviser to advise on.

1. Wills

A will sets out who inherits what. Without one, the intestacy rules decide. In England and Wales, a will can be made “in contemplation of marriage” to a named person, which means the marriage doesn’t cancel it. Otherwise, a will made before a marriage is revoked by it.

Matters a solicitor will usually ask you about include:

• who you’d like to inherit your home, savings, pensions and personal possessions
• whether you want to provide for your partner, and in what way
• who you’d like as executors, the people who deal with your estate
• whether you’d like to leave a letter of wishes explaining your reasons

Solicitors generally suggest reviewing a will after major life changes, such as moving in together, marrying, selling a home or new grandchildren arriving.

2. Life interest trusts (sometimes called property trust wills)

A life interest trust is one of the ways solicitors balance the needs of a partner and children. In broad terms:

• a will places your share of the home, or other assets, in a trust
• your partner can live in the home, or receive income from the assets, for their lifetime or until a set event such as remarrying or moving into care
• when the trust ends, the assets pass to the people named, often your children

This can give a partner security while preventing your share of the home passing to their family. Trusts need careful drafting and ongoing administration, and they have tax consequences, which is why they’re set up by solicitors.

3. How property is owned

In England and Wales, there are two main ways to own a home jointly:

• Joint tenants own the whole property together. If one dies, the other automatically inherits the whole property, whatever the will says.
• Tenants in common each own a share, which doesn’t have to be equal. Each person can leave their share by will.

A declaration of trust is a document recording how much each person contributed and what share each owns. Which form of ownership suits you is a question for a solicitor or conveyancer. Scotland uses different terms and rules, including survivorship destinations in the title deeds.

4. Prenuptial and postnuptial agreements

A prenuptial agreement (before marriage) or postnuptial agreement (after marriage) sets out how a couple intends to divide assets if they separate.

In England and Wales, these agreements aren’t automatically legally binding, but courts give them significant weight if they were entered into freely, with full understanding, and are fair. Since the Supreme Court’s decision in Radmacher v Granatino in 2010, courts have generally upheld fair agreements. Factors courts look at include whether both people had independent legal advice, whether there was full financial disclosure, and whether the agreement was signed well before the wedding.

In Scotland, prenuptial agreements are generally enforceable, provided they were fair and reasonable when they were made.

A prenup deals mainly with separation. What happens on death is governed by wills and the law of succession.

5. Cohabitation agreements

A cohabitation agreement is a document in which an unmarried couple sets out who owns what, how bills and costs are shared, and what happens if they separate. It’s generally treated as a contract. Independent legal advice for each person and full financial disclosure are factors that affect how much weight it’s given.

6. Pensions and life insurance

Pensions often don’t pass under a will. Many workplace and personal pensions pay death benefits at the discretion of the scheme trustees, guided by an “expression of wish” or nomination form. Your scheme can tell you who is currently nominated and how to change it. Our guide to what happens to your pension if you remarry explains more.

Life insurance policies can often be written “in trust”, so the payout goes directly to named people without forming part of the estate. Your insurer or a regulated adviser can explain whether this applies to your policy.

7. Lifetime gifts

Some people give money to children during their lifetime, for example towards a house deposit. Gifts reduce the value of an estate, but they can have Inheritance Tax implications if the giver dies within seven years, and they may matter if care is needed later, because giving away assets can be treated as deprivation of assets. These are questions for a financial adviser or solicitor before any gift is made.

8. Lasting powers of attorney

A lasting power of attorney (LPA) lets you choose who makes decisions for you if you lose mental capacity. There are two types in England and Wales: one for property and financial affairs, and one for health and welfare. You can appoint more than one attorney, which some families use to involve both a partner and children. Scotland has a similar system called a power of attorney, registered with the Office of the Public Guardian (Scotland). GOV.UK and the Office of the Public Guardian explain how to make one, and a solicitor can help.

Scotland: legal rights for spouses and children

In Scotland, even if you have a will, your spouse or civil partner and your children have “legal rights” to a share of your “moveable” estate (money, investments and possessions, but not land or buildings). These rights can’t be removed by your will, although a person can choose to accept what the will gives them instead.

This means that in Scotland, your children will usually be entitled to a share of your moveable estate whatever your will says. It also means a new spouse may have a claim. If you live in Scotland, take advice from a Scottish solicitor, as the rules are quite different from those in England and Wales.

Care home fees and your home

A common worry is what happens if one partner needs residential care. In general, if you go into a care home, your own assets, including your share of your home, may be taken into account when working out how much you pay. The value of your home is usually disregarded if your spouse, partner or certain other relatives still live there.

The rules are complex and differ between England, Wales, Scotland and Northern Ireland. Schemes that claim to protect a home from care fees by putting it into a trust carry real risks. Giving away assets deliberately to avoid care fees can be treated as “deprivation of assets”, and the local authority may still count them. MoneyHelper, Age UK and independent solicitors specialising in elderly client law can explain the rules for your situation.

Talking to your partner about inheritance

Money conversations can feel unromantic, but they’re essential in later-life relationships. Tips for raising the subject:

• Start early, ideally before moving in together or getting engaged.
• Explain your intentions, for example: “I’d like my house to go to my children eventually, but I want to make sure you’d be secure if anything happened to me.”
• Listen to their concerns. Your partner may also want to protect their own children, or worry about being left without a home.
• Aim for a plan that works for both of you, then put it in writing with legal advice.
• Consider seeing a solicitor together, but make sure each of you also gets independent advice where needed.

Talking to your children

Adult children often worry about inheritance, even if they don’t say so directly. It may come out as coolness towards your new partner, or questions about how serious the relationship is.

• Reassure them without oversharing. You don’t need to disclose every detail of your finances, but letting them know you’ve taken advice and made a will can ease a lot of anxiety.
• Be clear that it’s your decision. It’s your money and your life. Their feelings matter, but you’re entitled to provide for your partner.
• Avoid surprises. Conflicts after a death are often caused by wills that come as a shock. A letter of wishes can explain your reasons.

Our guide to when adult children disapprove of your new partner covers these conversations in more depth.

Situations that commonly cause problems

Solicitors and advice services regularly see the same issues in later-life relationships:

• Marrying without a new will in England and Wales, so an old will is cancelled and the intestacy rules apply.
• Living together without any will, leaving an unmarried partner with no automatic inheritance rights.
• Owning a home as joint tenants without realising it will pass automatically to the survivor.
• Out-of-date pension nominations, sometimes still naming an ex-spouse.
• Relying on verbal promises, such as “my partner will look after my children’s share”, which have no legal force.
• Home-made wills in complicated situations, such as blended families or trusts, which can be drafted in ways that don’t do what people intended.
• Leaving it too late. A will can only be made while a person has mental capacity.

Three common scenarios

These examples show the kinds of arrangements couples discuss with solicitors. They’re illustrations, not recommendations. The right answer depends on your circumstances and the law where you live.

Scenario 1: One of you moves into the other’s home

One partner owns their home and wants it to pass to their children. The other is selling their own home and wants that money to pass to theirs. Arrangements couples in this position sometimes discuss with a solicitor include contributing to bills but not to the property, keeping sale proceeds in one person’s name, and a life interest trust in the homeowner’s will allowing the other to stay for a period or for life.

Scenario 2: Buying a home together with different contributions

Couples putting in different amounts sometimes own as tenants in common, in shares reflecting their contributions, with a declaration of trust. Wills may leave each share to each person’s own children, sometimes with a right for the survivor to stay for a period. A solicitor or conveyancer can explain the options. Our guide to moving in or buying a home together after 50 covers the practical side.

Scenario 3: Getting married

Couples marrying later in life often raise several issues with a solicitor at once: wills made in contemplation of the marriage (in England and Wales), whether a prenuptial agreement is appropriate, pension nominations, and how property is owned. Where Inheritance Tax is a concern, a specialist tax adviser can explain how the spouse exemption and trusts interact.

The bottom line

Looking after a new partner while protecting your children’s inheritance rarely happens by accident. The law treats married couples, unmarried couples and couples who live apart very differently, and in England and Wales marriage cancels an existing will. Wills, trusts, how property is owned, pension nominations and prenuptial or cohabitation agreements all play a part.

Understanding the basics helps you ask the right questions. Talking openly with your partner and children helps avoid conflict. The decisions themselves are ones to make with a solicitor and, where money or tax is involved, a regulated financial or tax adviser.

Frequently asked questions

Does my new husband or wife automatically inherit everything?

Not always. If you die without a will in England and Wales, a spouse inherits your personal possessions, the first £322,000 and half of the rest. Your children share the other half. With a valid will, you can decide who inherits.

Does getting married cancel my will?

In England and Wales, yes, unless the will was made in expectation of that particular marriage. In Scotland, marriage doesn’t cancel a will.

Can my unmarried partner inherit if I die without a will?

No, not under the intestacy rules in England and Wales. They may be able to make a claim through the courts, but that’s uncertain and can be costly. A solicitor can explain how a will could provide for them.

What’s a life interest trust?

It’s a trust in your will that lets someone, usually a partner, live in your home or benefit from assets for their lifetime, with the assets passing to someone else, usually your children, afterwards.

Are prenups legally binding in the UK?

In England and Wales, they’re not automatically binding, but courts generally uphold fair agreements made with independent advice and full disclosure. In Scotland, they’re generally enforceable if they were fair when made.

Can my children challenge my will?

In England and Wales, adult children can sometimes make a claim under the Inheritance (Provision for Family and Dependants) Act 1975, although success isn’t automatic. In Scotland, children have legal rights to part of the moveable estate. A solicitor can explain how the risk of a dispute applies in your circumstances.

Related guides

• Wills when you have a new partner
• Cohabitation agreements explained
• Cohabitation rights in England and Wales
• Should you remarry after 50? Marriage vs living together vs living apart
• Living apart together after 50
• When adult children disapprove of your new partner
• Dating a widower: what to expect
• Can you date before your divorce is final?
• Moving in or buying a home together after 50
• What happens to your pension if you remarry?
• Money in later-life relationships: separate accounts and sharing costs
• Prenups and second marriages in the UK

Sources

• GOV.UK, “Who can inherit if there’s no will”: intestacy rules in England and Wales.
• The Administration of Estates Act 1925 (Fixed Net Sum) Order 2023: statutory legacy of £322,000 from 26 July 2023.
• Wills Act 1837, section 18 (effect of marriage on a will).
• Inheritance (Provision for Family and Dependants) Act 1975.
• Radmacher v Granatino [2010] UKSC 42.
• Family Law (Scotland) Act 2006 and Scottish Government guidance on legal rights and cohabitants’ claims.
• GOV.UK, lasting power of attorney and Inheritance Tax guidance.