Second Marriage and Children from a Previous Relationship: Planning Your Will in Spain

Protecting your spouse and leaving an inheritance to your children can both be part of your estate plan. The important question is whether your Will gives each of them the rights you actually intend.  Leaving everything to your partner may seem the simplest answer, but it can leave your children relying on decisions made after your death. Whether you live in Spain or own a second home here, a second marriage is a good reason to review your Wills and estate planning.

How does a second marriage affect planning a Will in Spain?

A second marriage changes who you need to provide for and may affect whether an earlier Will still works. Your spouse’s needs now sit alongside your intentions for children from a previous relationship. Yet reviewing a Will can easily be overlooked.

The first step is to check whether your existing Wills are still valid. In England and Wales, a new marriage generally revokes an earlier Will, with exceptions including a Will made in contemplation of that particular marriage. However, this shouldn’t be considered a blanket rule for every British family, as Scotland has different rules.

Next, check what you actually own. The title deeds and your matrimonial property arrangements help establish which assets, or shares of assets, belong to you and can pass through your estate.  Finally, read the beneficiary clauses. Do they still name a former spouse? Does “my children” include everyone you mean to benefit? A Will written before your current relationship may give a very different result from the one you now want.

Can I provide for my spouse while protecting children from a previous relationship?

Yes, careful inheritance planning can help you support your spouse while preserving an inheritance for your children. Start by deciding what your spouse would need: somewhere to live, an income, access to capital, or a combination of these.

You might consider leaving different assets to different beneficiaries, or separating the right to use a property from its underlying ownership. Each option needs checking against the succession law that applies, any protected family entitlements and the assets available.  For example, where Spain’s common Civil Code governs the succession, children and a qualifying surviving spouse have protected rights. Regional civil laws can differ. A spouse’s entitlement is not necessarily outright ownership and marriage does not mean they automatically inherit everything.

Furthermore, British nationality does not guarantee unrestricted freedom either. The relevant UK legal system must be identified; Scottish law, for example, gives children legal rights in the movable estate.

What if I leave everything outright to my spouse, expecting them to pass it to my children?

If a valid outright gift takes effect, your spouse becomes the owner. Your wish for the children to inherit later does not, by itself, preserve those assets for them.  The survivor may need to spend the money, sell the home or fund care. They may also change their Will, remarry or decide to favour their own children. Even without any disagreement, there may be much less left than either of you expected.

Making similar Wills that leave everything to each other, then to the children, does not by itself make that later inheritance binding. If protecting a particular inheritance matters, ask what legally effective arrangement could achieve it and what flexibility the survivor would lose.

Maggie Panet, Head of PCC Legal explains:

“One of the most important conversations I have with clients is about finding the right balance between protecting their spouse and preserving their children’s inheritance. These two priorities should never have to compete. Thoughtful estate planning means giving your spouse the financial security and peace of mind they deserve, while putting clear safeguards in place to ensure your children’s inheritance is protected—not simply left to chance.”

Do children and stepchildren have the same inheritance rights?

You should not assume they do. Under Spain’s common Civil Code, a stepchild who has not been adopted does not acquire the reserved inheritance rights of a child simply because their parent remarries. Adopted children have the same status as other children.

If you want to provide for stepchildren, name them clearly when writing a Will and check what the applicable law permits. Equally, leaving assets to your spouse doesn’t make your own children, automatic heirs of their stepparent.  It is also important to understand that inheritance rights and inheritance tax are separate questions. A beneficiary can be named in a Will without qualifying for the same tax treatment as a biological or adopted child. The relevant tax rules need their own review.

Could my partner stay in our Spanish home while my children inherit a share?

Potentially, yes. A carefully drafted arrangement may allow your partner to use the home while your children inherit ownership, subject to your partner’s rights.

PCC Legal’s specialist inheritance lawyer can advise whether a usufruct would suit your family. This gives your partner the right to use the property and benefit from it, including receiving rental income. Your children would hold what is known as bare ownership: they own the property, but their use of it is limited by your partner’s rights.

Another option is a right of habitation, which allows your partner to live in the home but not rent it out. The choice depends on whether you want to provide a home, an income or both.

The arrangement should clearly explain:

• Who pays for insurance, community fees and repairs.
• Whether your partner can rent out the property.
• What happens if they move out permanently, need residential care or want to downsize.
• Who must agree to a sale and how the proceeds will be divided or used.

Any arrangement must respect legally protected inheritance rights and be checked for its implications for Spanish property ownership and tax. A clause from a UK will should not simply be copied into a will covering Spanish property. To find out what happens to a co-owner’s share when they die, read PCC Property’s recent article, Spanish Property Jointly Owned: What Happens on Death?

Hypothetical example:

Protecting the surviving spouse and the children’s inheritance

A remarried British couple live in Spain and both have children from previous relationships. They own their Spanish home in equal shares and each has savings in the UK. They want the surviving spouse to be able to stay in the home, while ensuring that each person’s share of their wealth eventually passes to their own children.

If one spouse leaves everything outright to the other and the gift is legally valid, their children have no guaranteed future inheritance simply because the couple discussed their wishes. The surviving spouse could later leave the remaining assets to their own children or need to spend the money. Leaving their share of the home directly to their children could also cause problems if the surviving spouse’s right to stay is not addressed. The children may want to access their inheritance while the survivor still needs somewhere to live.

One option to discuss with a specialist inheritance and estate planning lawyer at PCC Legal is allowing the surviving spouse to use the deceased’s share of the home while the deceased’s children inherit the underlying ownership. The UK savings may also allow the children to receive some inheritance straight away, provided the surviving spouse has enough to live on.

The couple would need to decide how long the right to stay lasts, who pays the costs and what happens if the survivor wants to sell. The arrangements should work whichever spouse dies first.

This is an illustration, rather than a recommended arrangement. Before drafting any provisions, a legal adviser must check the applicable inheritance law, property ownership, family members’ rights and tax implications.

Does it matter whether I live in Spain or own a holiday home here?

Yes, under the  EU Succession Regulation in Spain, the law that usually applies to your inheritance is that of the country where you normally live when you die. You can generally choose the law of your nationality in your Will. A narrow exception may apply if, for example, you moved to Spain shortly before your death but remained clearly more closely connected to your previous country.

If Spain is your main home, Spanish inheritance law may apply. Owning a holiday home in Spain does not, on its own, make you resident if you normally live elsewhere. You can choose in your Will for the inheritance law of your nationality to apply instead. For British nationals, this means identifying whether English and Welsh, Scottish or Northern Irish law applies. Under the Regulation, your choice applies to your inheritance as a whole, rather than just one property. Any UK assets must also be considered alongside UK rules.

Choosing succession law does not choose your tax treatment. Tax residence, beneficiaries’ circumstances, asset location and the relevant tax rules must be considered separately. For more details, see Private Client Consultancy’s Succession Tax in Spain guide.

How should my UK and Spanish Wills work together?

They should form one coherent plan, with clear wording about which assets each covers and which earlier provisions remain in force. Separate Wills can be useful, but signing a new Will with a broad clause revoking all previous versions could unintentionally undo arrangements in the other country. As part of your estate planning, your advisers should review both documents together, checking who will inherit, who should inherit if a beneficiary dies before you, and which country’s inheritance law will apply.

For a second marriage, they should also check the outcome after each death. Does one Will promise your children an inheritance that another document leaves entirely under the survivor’s control? PCC Legal’s Is a UK Will Valid in Spain? addresses the separate issue of recognition and cross-border documentation.

When should existing Wills be reviewed?

Review them before remarriage where possible and promptly afterwards if you have not already done so. Further triggers include separation or divorce, buying or selling property, moving country, a new child or grandchild, a beneficiary’s death, and significant changes in health or finances.

Any linked pension nominations should also be reviewed and considered alongside your family intentions, rather than assuming the Will controls every payment. Private Client Consultancy explains the wider issues in What Happens to My Private Pension When I Die?

For an estate and succession planning review, bring copies of all Wills, property deeds, relevant marriage or divorce documents, a summary of assets and debts, and the names of your intended beneficiaries. Think about what your partner would need immediately and what you want your children to receive eventually.

Arrange a Will and estate planning review with PCC Legal

If you have remarried or have children from a previous relationship, PCC Legal’s Wills and estate planning lawyers can help you review your arrangements. The review can consider your existing Wills, family circumstances, property ownership and intended beneficiaries, including how your UK and Spanish arrangements work together. It is an opportunity to establish what your partner needs, what you want to preserve for your children, and where your current documents may leave a gap.