If a parent has remarried but wants to ensure that their children are provided for after they die, then it’s essential to make a new Will as the new marriage will have automatically voided any existing Will. Under inheritance laws, their new spouse would be the primary beneficiary of their Estate and their children could be left with significantly less or nothing at all.
Remarriage and Wills – How it Works
If someone remarries and doesn’t then make a new Will, it would be as though they died without a Will in place (even if they previously had one). This is called dying ‘intestate’, and this would happen because marriage automatically revokes any previous Will that the person had in place.
The only instance in which marriage doesn’t revoke a Will is if that Will has been made in ‘contemplation’ of that marriage. The Will must contain the correct wording and make specific reference to the intended husband or wife.
When someone dies intestate, inheritance laws come into play to determine how their Estate (everything they owned) should be passed on. These laws are called the Rules of Intestacy, and they place relatives in order of priority, with spouses or civil partners at the top of that list.
This means that, without a legally valid Will, the spouse of the deceased person would be recognised as the primary Beneficiary of their Estate, and their children could be entitled to significantly less or nothing at all.
Would I be able to make a claim on their Estate?
In Australia, there are specific individuals who are entitled to make a claim on an Estate if they feel that they have not been sufficiently provided for. As the child of the deceased, you would be entitled to make a Claim, but it would be up to the Court to decide whether you had been sufficiently provided for and, if not, what would be sufficient.
This is likely to be a long, costly and challenging process that may not resolve in the way that you wanted.
The benefits of making a Will
The only person who can ensure that you receive the inheritance that is intended for you is your parent. And the best way that he can do this is to make a legally valid Will after they remarry or in contemplation of an upcoming marriage, setting out precisely what should happen to their Estate upon their death.