Potentially, Yes — If You Leave Everything Outright to Your Spouse
This is a risk many couples do not think about when making ordinary Wills.
You may both intend:
“Whichever of us dies first gets everything, and eventually it all goes to the children.”
But after the first death, life carries on.
The survivor may meet somebody else.
They may live together.
They may marry. In which case the new spouse automatically becomes the prime beneficiary even without a new Will (except for the part you thoughtfully protected with me!)
They may change their Will.
And property which originally belonged to you could eventually pass to somebody you never knew.
A Homeowner Protection Will can help protect the inheritance you want ultimately to reach your chosen beneficiaries.
A Simple Example
David and Susan own their family home.
They have two children, Emma and James.
Their ordinary mirror Wills leave everything to each other and then to the children.
David dies first.
His property passes outright to Susan.
Several years later Susan meets Robert.
Robert moves in and eventually they marry.
Susan understandably wants to provide for Robert as well as her children.
But the eventual outcome may now be very different from the one David expected when he made his Will.
Once You Give Property Away, It Is No Longer Yours
This is the fundamental point.
If David leaves his property outright to Susan, it becomes Susan’s property.
She may subsequently:
- leave it to Robert;
- give Robert a right to live there;
- put property into joint names;
- use the money to buy another property with Robert;
- make gifts;
- or make a completely different Will.
David’s original intention that Emma and James should ultimately inherit is no longer guaranteed.
What If My Spouse Remarries?
Under the current law in England and Wales, marriage will normally revoke an existing Will unless an exception applies.
So the survivor does not necessarily have to deliberately remove the children.
The marriage itself can alter the position.
If the survivor then dies without another valid Will, the intestacy rules may apply and the new spouse could inherit a substantial part of the estate.
[Does Marriage Revoke Your Will? →]
What If They Never Marry?
There can still be a risk.
A new partner might:
- live in the property;
- contribute towards improvements;
- help with household costs;
- become financially dependent upon the survivor;
- receive gifts;
- become a beneficiary under a new Will;
- or buy another property jointly with the survivor.
The key issue is not simply remarriage.
It is that property left outright now belongs to the survivor.
How Does a Homeowner Protection Will Change This?
Instead of David giving his protected share of the home outright to Susan, his Will creates a trust when he dies.
Susan can continue living in and enjoying the home.
But David’s protected interest remains governed by David’s Will.
He can specify that when Susan’s rights eventually end, his protected inheritance passes to Emma and James.
Susan can still:
- meet somebody else;
- live with them;
- remarry;
- and change her own Will.
But those later decisions do not automatically redirect David’s protected trust property.
Does That Mean a New Partner Cannot Live in the House?
Not necessarily.
A Homeowner Protection Will is not intended to control the survivor’s personal life.
If Susan has a lifetime right to occupy the home, she may be able to choose who lives there with her.
Robert does not automatically acquire David’s protected interest simply because he moves into the property.
Can My Spouse Leave the Whole House to Their New Partner?
They can write a Will saying that.
But their Will can only effectively dispose of property or interests which actually belong to them.
If David’s protected share remains within his Homeowner Protection Trust, Susan cannot simply turn it into her own property by writing:
“I leave the whole house to Robert.”
Robert might inherit Susan’s own share.
David’s protected share remains subject to David’s trust.
Could the New Partner Eventually Own Part of the House?
Yes.
For example:
David’s protected share
Eventually passes to Emma and James.
Susan’s own share
Susan later leaves to Robert.
That could result in Robert and the children having interests in the same property.
Often the practical answer following Susan’s death would be to sell the property and distribute the respective interests correctly.
Can My Spouse Give Their Own Share Away?
Potentially, yes.
The Homeowner Protection Will protects your protected inheritance.
It does not give you control over property which genuinely belongs to your surviving partner.
That distinction is important.
Your partner controls their assets.
Your Will controls your protected inheritance.
What If They Buy Another House Together?
This needs care.
Suppose Susan sells the original home and buys another property with Robert.
Some of the sale proceeds may belong to David’s trust.
Those trust funds should not simply be mixed with Robert’s money without properly recording who owns what.
The trustees need to make sure David’s protected value remains identifiable.
[Can the Survivor Move House After the First Death? →]
What If the New Partner Pays for Improvements?
That can complicate matters.
If a new partner spends substantial money improving a property, it should be clear:
- whether the money is a gift;
- whether repayment is expected;
- whether any ownership rights are being created;
- and whether the trustees need to agree.
Informal arrangements can become difficult to unravel many years later.
Could the New Partner Claim Against the Estate?
Potentially.
Depending upon the circumstances, someone who has been living with or financially dependent upon the survivor may be able to bring a claim against their estate.
Whether any claim would succeed depends upon the facts.
A Homeowner Protection Trust cannot guarantee that nobody will ever make a claim.
But property protected by the first person’s trust is in a different position from property which was simply given outright to the survivor.
Should the Survivor’s Rights End if They Remarry?
That is something which can be considered when the Will is drafted.
Some people say:
“My spouse should be able to remain in the home for life, whatever happens.”
Others say:
“If my spouse remarries, circumstances have changed and I want my protected inheritance to pass to the children.”
The important thing is to think about the issue before the Will is made rather than after the problem arises.
Protecting the Children Without Controlling the Survivor
That is the balance.
A Homeowner Protection Will should not attempt to control every decision your surviving partner makes.
They remain free to:
- form another relationship;
- remarry;
- change their own Will;
- and make decisions about their own assets.
But those freedoms do not necessarily have to include the ability to redirect your protected inheritance.
The Question to Ask Yourself
Imagine you die first.
Twenty years later your spouse is living with somebody you have never met.
Ask yourself:
Am I completely comfortable with that person potentially receiving the value of the home I originally intended my children or other beneficiaries to inherit?
If the answer is yes, an ordinary outright gift may be perfectly suitable.
If your answer is:
“I want my partner secure, but I also want my own inheritance protected,”
a Homeowner Protection Will may be worth considering.
In Simple Terms
Can my spouse’s new partner inherit property I leave outright to my spouse?
Potentially, yes.
Can remarriage affect my spouse’s existing Will?
Yes.
Does somebody acquire my protected share simply by moving into the house?
No.
Can my spouse leave their own share to a new partner?
Yes.
Can their new Will normally redirect my protected trust share?
No.
That distinction is one of the main purposes of a Homeowner Protection Will.
Protect the Inheritance Without Predicting the Future
Nobody knows what will happen after they die.
And hopefully the survivor will have a long and happy life.
The issue is not preventing them from moving on.
It is deciding whether the inheritance you worked for should remain protected regardless of what happens afterwards.
[Find Out If a Homeowner Protection Will Is Right for You]
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Can My Spouse’s New Partner Inherit My Home After I Die?
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Could your spouse’s new partner eventually inherit your home? Find out how remarriage, changed Wills and new relationships can affect inheritance and how a Homeowner Protection Will can help.