Tying the knot without unravelling your estate plan

Marriage is supposed to be one of life’s happiest milestones. It is also one of its most significant legal events.

On 16 July, the Government launched “Tying the Knot”, a consultation proposing the biggest reform of weddings law in England and Wales for almost 200 years. At first glance, the headlines are exciting: greater flexibility over where couples can marry, legal recognition for more types of ceremonies and a modernised framework that reflects how people choose to celebrate today. The said Government consultation is available here.

From a private client lawyer’s point of view however, I cannot help but view these proposals through a slightly different lens.

Whilst the consultation focuses on how people marry, it also presents an opportunity to revisit one of the least understood legal consequences of marriage: what it means for your Will.

A modern approach to marriage

The Government is proposing a significant shift away from the current system, which centres on licensed buildings, towards one focused on the officiant conducting the ceremony. If implemented, couples could have much greater freedom over where they marry, whether that is in a family garden, on a beach, aboard a boat or in another meaningful location, provided appropriate safeguards are met. The consultation also seeks to create a more inclusive framework for religious, interfaith and non-religious ceremonies.

There is much to welcome here.

The law should evolve alongside society, and many of the current rules have long been criticised as unnecessarily complex and inconsistent. Modernising weddings law has the potential to make marriage more accessible, more inclusive and more reflective of modern family life.

However, whilst the ceremony itself may become more flexible, the legal consequences of marriage remain every bit as important.

The legal consequence many people don’t know

One of the questions I am asked most frequently is whether clients need to review their Will before and/ or, after getting married.

The answer, under the current law, is an unequivocal yes.

Unless a Will has been prepared specifically in contemplation of a particular marriage or civil partnership, marrying will generally revoke it automatically. That often comes as a surprise. A carefully drafted Will protecting children from an earlier relationship, preserving a family business or making provision for vulnerable beneficiaries can simply cease to have effect on the day of the wedding.

If no replacement Will is made, the estate may instead pass under the intestacy rules, potentially producing an outcome very different from that intended and it becomes ever trickier as the threshold for capacity to marry currently is arguably lower than that to be able to make a Will.

Why reform is being considered

Few cases have highlighted the shortcomings of the current law more powerfully than that of Joan Blass.

Mrs Blass married in later life whilst living with dementia. The marriage automatically revoked her existing Will, and because she did not make another, her estate passed under the intestacy rules (which apply in the absence of a Will) rather than in accordance with her previously expressed wishes. Her case has become one of the best-known examples of the risks associated with so-called predatory marriage and has helped shape the debate around reform.

It raises an important question. Should entering into a marriage automatically undo a person’s carefully considered testamentary wishes? The answer proposed by the Law Commission is no.

Reforming the law on Wills

As part of its recommendations for modernising the law governing Wills, the Law Commission has proposed abolishing the long-standing rule that marriage automatically revokes an existing Will. The intention is to better protect vulnerable individuals and reduce the potential for financial abuse through predatory marriage. The Government have shelved Wills reform for the moment, disappointingly.

The proposed reforms extend much further than this. As highlighted by The Law Society, they include modernising the law on testamentary capacity, strengthening protection against undue influence, giving courts greater flexibility where a Will contains minor technical errors and creating a legal framework capable of accommodating electronic Wills in the future. Together, these proposals recognise that succession law, much of which still derives from the Wills Act 1837, should reflect the realities of modern life. (⁠Law Commission above)

One common theme

Although the Government’s weddings consultation and the proposed reforms to Wills law concern different areas of legislation, they share a common objective. Both seek to modernise laws that have served us for generations but which no longer always reflect contemporary society. Both seek to balance greater personal autonomy with appropriate safeguards for vulnerable people. And both remind us that significant life events should always prompt us to review our legal affairs.

What’s next?

Whether these proposals ultimately become law remains to be seen. Until then, the current position remains unchanged: marriage or civil partnership will generally revoke an existing Will unless it was made in contemplation of that specific union.

For me, the consultation and wider discussion is therefore about much more than where couples choose to say “I do”. It is a timely reminder that the most important part of planning a wedding is not simply organising the day itself, but ensuring that your legal affairs continue to reflect your wishes once the celebrations are over.

After all, good estate planning has never simply been about documents or tax. It is about protecting the things we build for the people who matter most. If you are planning to marry or enter into a civil partnership, taking advice on your Will before and after your wedding could prove to be one of the most valuable items on your wedding checklist. And you should take advice from a family lawyer too as nuptial and cohabitation agreements are a vital part of any robust estate plan, whichever stage of tying, or undoing, the knot you're at.