Usually, Yes
This surprises many couples.
You may both make mirror Wills saying:
“Everything to each other, and after the second death everything goes to our children.”
That sounds as though you have made a binding agreement about where everything will eventually go.
Usually, you haven’t.
If you die first and leave everything outright to your husband, wife or partner, they will normally be free to make a completely new Will afterwards.
That new Will could leave the estate somewhere entirely different.
This is one of the main reasons some homeowners consider a Homeowner Protection Will instead.
Mirror Wills Are Usually Two Separate Wills
Mirror Wills are simply two Wills containing similar provisions.
For example:
David’s Will:
Everything to Susan, then to Emma and James if Susan has already died.
Susan’s Will:
Everything to David, then to Emma and James if David has already died.
They look like one joint arrangement.
But legally they are normally two separate Wills.
David can change his.
Susan can change hers.
And if David dies first, Susan can normally make another Will afterwards.
“But We Agreed the Children Would Get It”
You may genuinely have agreed that everything will eventually pass to the children.
But an intention is not necessarily legally binding.
Suppose David and Susan own a £400,000 home.
Their mirror Wills leave everything to each other and then equally to their children, Emma and James.
David dies first.
His assets pass outright to Susan.
Ten years later Susan makes another Will.
She might decide to leave:
- more to one child than another;
- something to a new partner;
- money directly to grandchildren;
- something to a charity;
- or perhaps the entire estate differently.
Susan is normally entitled to do that.
David’s old Will no longer controls property he gave outright to Susan.
It Doesn’t Mean Your Spouse Has Behaved Badly
Circumstances can change enormously.
The survivor may live another 20 or 30 years.
They might:
- remarry;
- start another relationship;
- fall out with a child;
- acquire stepchildren;
- have grandchildren;
- become financially dependent upon somebody;
- want to provide for a carer or friend;
- or simply change their mind about what is fair.
The issue is not necessarily whether you trust your spouse.
It is whether you can predict everything that will happen during the rest of their life.
You can’t.
What If My Spouse Remarries?
That can create another problem.
Under the current law in England and Wales, marriage will generally revoke an existing Will unless an exception applies.
So even if the survivor never deliberately decides to remove the children from their Will, remarriage itself can change the position.
[Does Marriage Revoke Your Will? →]
How Does a Homeowner Protection Will Change This?
A Homeowner Protection Will does not stop your spouse making another Will.
Nor should it.
Your spouse should remain free to decide what happens to their own property.
Instead, the arrangement protects the inheritance belonging to the person who dies first.
Suppose David dies first.
His Homeowner Protection Trust comes into existence.
Susan can continue benefiting from the home.
But David’s protected share remains governed by David’s Will.
He has already decided who should ultimately receive it.
Your Partner Still Controls Their Own Estate
After David dies, Susan can make whatever Will she wishes concerning her own property.
She might leave it to:
- Emma and James;
- grandchildren;
- a new partner;
- charity;
- or somebody else entirely.
The Homeowner Protection Will does not remove that freedom.
But Susan’s new Will cannot normally redirect property already protected within David’s Will trust.
In simple terms:
David’s protected inheritance
Controlled by David’s Will trust.
Susan’s own property
Controlled by Susan’s Will.
That is the distinction.
Can My Spouse Give My Protected Share Away?
Normally, not simply as though it belongs to them outright.
The survivor may have substantial rights.
They might be able to:
- live in the property;
- move house;
- use trust money towards a replacement property;
- and receive other benefits permitted by the Will.
But having those rights does not necessarily mean the protected capital belongs to them to give away.
That distinction is fundamental to how the protection works.
What If Their New Will Says “I Leave My House to My New Partner”?
Their Will can only dispose of property or interests that actually belong to them.
Suppose Susan’s later Will says:
“I leave my house to Robert.”
But David’s protected share is still held under his Homeowner Protection Trust.
Susan’s new Will cannot simply turn David’s trust property into her own property.
Robert’s entitlement would therefore have to be considered alongside David’s existing trust.
Susan could, however, leave her own share to Robert.
The trust protects David’s decision.
It does not permanently control Susan’s estate.
Why Not Simply Make Mutual Wills?
Mutual Wills are different from ordinary mirror Wills.
They can involve an agreement which becomes binding after the first death.
But that can create considerable restrictions for the survivor.
Imagine they live for another 25 years.
They may need to change their arrangements because:
- a beneficiary becomes vulnerable;
- somebody dies;
- tax rules change;
- grandchildren arrive;
- or their own circumstances alter completely.
A Homeowner Protection Will can offer a more focused solution:
Protect the first person’s inheritance without unnecessarily freezing the survivor’s entire estate plan.
Mirror Wills Compared With Homeowner Protection Wills
Ordinary Mirror Wills
David leaves everything outright to Susan.
Susan can normally change her Will later.
David therefore relies substantially upon Susan’s future decisions for the children eventually to inherit.
Homeowner Protection Wills
David’s protected share enters his Will trust.
Susan continues benefiting from the home.
Susan can still change her Will concerning her own property.
But David’s protected inheritance remains governed by the arrangements David made.
Does This Mean I Don’t Trust My Spouse?
No.
You may trust your spouse completely.
The question isn’t simply:
“Will my spouse deliberately cut the children out?”
A better question is:
“Can I predict everything that will happen during the rest of my spouse’s life?”
A Homeowner Protection Will can protect against changing circumstances, not merely changing intentions.
What If My Spouse Later Loses Mental Capacity?
That is another reason not to rely entirely upon what the survivor may do in future.
If they lose testamentary capacity, they may no longer be able simply to make another Will.
Their attorneys cannot ordinarily make a Will for them.
A statutory Will may require an application to the Court of Protection.
A Homeowner Protection Trust which already exists following the first death does not simply disappear because the survivor later loses capacity.
The Key Question
Ask yourself:
If I die first and leave everything outright to my partner, am I completely comfortable with them having the legal freedom to leave all of it somewhere else later?
If the answer is yes, a straightforward Will may be entirely suitable.
If your answer is:
“I want my partner properly looked after, but I also want to protect the inheritance I intend for my children, grandchildren or other beneficiaries,”
a Homeowner Protection Will may be worth considering.
Protect Your Decision Without Controlling Theirs
That is really what the arrangement is designed to achieve.
Your partner controls their inheritance.
You retain greater control over where your protected inheritance ultimately goes.
[Find Out If a Homeowner Protection Will Is Right for You]
SEO title
Can My Spouse Change Their Will After I Die? | Mirror Wills Explained
Meta description
Can your spouse change a mirror Will after you die? Usually yes. Find out why mirror Wills may not protect children’s inheritance and how a Homeowner Protection Will works.