Second marriages, stepchildren and competing claims

Remarriage after divorce or bereavement is common, and it produces a family structure that intestacy rules and default arrangements handle badly.

The conflicts that result are among the most common and most bitter in estate practice, and nearly all of them are foreseeable.

The core problem

Someone remarries. They want to provide for their new spouse, and they want their children from the first marriage to inherit eventually.

The simple solution — leave everything to the spouse — creates the problem. The spouse then owns it outright and can leave it to whomever they choose, which frequently means their own children.

The children from the first marriage receive nothing, sometimes decades later, having been told throughout that they would.

This is not a hypothetical. It is the standard pattern, and it produces litigation and permanent family rupture.

The other recurring issues

Stepchildren generally have no automatic entitlement. Under intestacy rules in most jurisdictions, stepchildren who were not legally adopted inherit nothing, regardless of how long they were raised by the person.

A stepchild raised from infancy receives nothing while a biological child who has been absent for thirty years inherits.

If you want stepchildren to inherit, you must say so explicitly in a will.

Marriage may revoke a will. In several jurisdictions, marriage automatically revokes an existing will unless it was made in contemplation of that marriage.

Someone who remarries without making a new will may die intestate, with entirely unintended consequences.

This catches people regularly and it is easily prevented.

Divorce may not revoke everything. In many jurisdictions divorce affects provisions relating to a former spouse, and the effect varies, and beneficiary designations on pensions and policies frequently remain in place regardless.

An ex-spouse receiving a pension death benefit because a form was never updated is a common and enraging outcome.

The family home. Where the home was owned before the second marriage, and where children expect to inherit it, the surviving spouse's need to live somewhere and the children's expectation are in direct conflict.

Jointly owned property. Where property is held with survivorship rights, it passes automatically to the survivor outside the will. Couples in second marriages frequently do not realise this and believe their will governs it.

Changing how property is held is a specific step that many second-marriage couples should take.

The structures that address it

Subject entirely to jurisdiction, and this is an area where advice is essential.

A life interest trust. The spouse has the right to live in the property, or to income from assets, for their lifetime. On their death, the capital passes to the children.

This is the standard solution and it works. It requires trustees, it involves ongoing administration, and it needs careful drafting about who pays for maintenance and what happens if the spouse wants to move.

Severing joint ownership, so that each person's share passes under their will rather than automatically to the survivor.

Frequently combined with a life interest, so the survivor can remain in the house while the deceased's share is preserved for their children.

Direct gifts to children on the first death, where there are sufficient assets that the survivor does not need everything.

Life insurance written for the benefit of children, providing for them without touching the assets the spouse needs.

Mutual wills, which are binding agreements not to change a will. These are legally complex, frequently produce unintended rigidity, and are generally not recommended without careful advice.

The conversation

The structures are the easy part. The conversation is not.

Have it with everyone. The spouse, and the adult children, and ideally in a way where nobody hears it second-hand.

Surprise is what generates litigation. Adult children who know in advance what the arrangement is, and why, very rarely contest it. Children who discover at the reading that a stepparent has inherited everything frequently do.

Explain the reasoning. "I want Anne to be able to stay in the house for as long as she needs. When she no longer needs it, it comes to you."

Address the timing honestly. Where a spouse is of a similar age to the children, a life interest may mean the children inherit in their seventies. That is worth acknowledging rather than leaving them to work out.

Do not make promises you have not implemented. A verbal assurance to children, contradicted by the actual documents, is a reliable route to a dispute and to a claim based on that assurance, which some jurisdictions recognise.

For the new spouse

It is worth saying that the person in this position is frequently blamed for arrangements they did not make and may not want.

Being explicit — that the arrangement is the deceased's decision, made for reasons they explained — protects them.

Where a spouse is expected to leave assets onward to stepchildren, relying on their goodwill is not a plan. If it matters, it should be in a structure.

The practical checklist

Make a new will after any marriage or divorce.

Check beneficiary designations on every pension and policy.

Check how property is held.

Consider whether stepchildren should be named.

Consider a life interest structure where there are children from a previous relationship.

Tell everyone what you have done.

This is general information, not legal advice. Rules on revocation by marriage, intestacy, property ownership and family provision differ substantially by jurisdiction. Take advice in a blended family situation — the default arrangements will not suit you.