The legal framework
England and Wales have separate property during marriage and a broad discretion on divorce under section 25 of the Matrimonial Causes Act, structured by case law around needs, compensation and sharing. There is no forced heirship: testamentary freedom is the starting point, tempered by the Inheritance (Provision for Family and Dependants) Act 1975. Scotland differs, with fixed legal rights over moveable estate.
Key points
| During marriage | Separate property; no community of property |
|---|---|
| On divorce | Discretionary redistribution; the marital home and pensions are usually shared |
| Prenuptial agreements | Not automatically binding, but given decisive weight if freely entered with disclosure and advice (Radmacher) |
| Testamentary freedom | Broad in England and Wales; no reserved shares |
| Family provision | Spouses, children and dependants may claim reasonable provision under the 1975 Act, within six months of the grant |
| Scotland | Legal rights give a spouse and children fixed shares of the moveable estate, which cannot be defeated by will |
| Inheritance tax | 40 % above the nil-rate band, with spouse exemption and the residence nil-rate band |
| No matrimonial regime | Property stays in the owner's name during the marriage; the court redistributes on divorce |
| Sharing principle | Assets built up during the marriage are the starting point for equal sharing |
| Nuptial agreements | Not automatically binding, but given decisive weight if properly made |
| Intestacy | A spouse does not necessarily inherit everything where there are children |
In practice
- A prenuptial or postnuptial agreement should involve disclosure, independent advice and time before the wedding.
- Obtain pension valuations early: pensions are frequently the largest asset after the home.
- Review wills after marriage — marriage revokes an existing will in England and Wales.
- Consider the residence nil-rate band when leaving a home to direct descendants.
- Sign any prenuptial agreement at least 28 days before the wedding, with disclosure and separate advice.
- Review the will after marriage: marriage revokes an earlier will in England and Wales.
Cost and coverage
Solicitors' fees for agreements and wills; probate fees on estates. Estate litigation is expensive and worth avoiding by careful drafting.
Recent changes
The Law Commission has reviewed both financial remedies on divorce and the law of wills, with proposals for greater certainty; legislation has not followed.
Where to go
- HM Courts and Tribunals Service for probate.
- Solicitors accredited by Resolution or STEP.
- Money Helper for pension sharing guidance.
Worth knowing
Marriage revokes an earlier will in England and Wales unless it was made in contemplation of that marriage. Many people die intestate simply because they married after making their will. Marriage revokes an existing will unless it was made in contemplation of that marriage. Many people discover this only when administering an estate.
Official sources and links
- GOV.UK — official portal for public services and rights
- legislation.gov.uk — the statute book as enacted and revised