Understanding how foreign marriages interact with inheritance laws in the UK is essential for individuals with cross-border family ties or international relationships. Globalisation, migration, and multicultural societies have resulted in a significant number of people entering marriages that take place outside the UK or involve spouses from different jurisdictions. These international unions pose unique challenges when they intersect with British inheritance law — especially in issues concerning succession, wills, intestacy and the recognition of foreign marital status. Navigating these complexities thoughtfully requires clarity on legal frameworks, jurisdictional nuances, and the practical implications for estate planning.
This article explores the key challenges and considerations that arise when dealing with inheritance in the UK involving a foreign marriage. We examine how foreign marriages are recognised under UK law, the implications on intestacy rules, how overseas matrimonial property regimes can affect distribution of assets, and dealing with tax liabilities. We also discuss the importance of wills tailored to multi-jurisdictional assets and the role of legal advice in managing transnational estates.
The starting point for any estate planning involving a foreign marriage is determining whether the marriage is legally recognised in the UK. Recognition of a foreign marriage under UK law is not automatic; it depends on whether the marriage is valid according to the laws of the country in which it was celebrated and whether it complies with UK public policy.
In general, a foreign marriage will be recognised in the UK if it was legally valid in the country it took place and both parties had the capacity to marry under their respective laws. This principle, known as the lex loci celebrationis, meaning “the law of the place where the marriage was celebrated”, guides UK courts in determining validity.
There are exceptions. The UK may refuse recognition if the marriage contravenes fundamental tenets of UK public policy, such as forced marriages, underage marriages where consent is not informed or legal age requirements are not met, or polygamous marriages entered into by someone who is domiciled in the UK. Same-sex marriages are an interesting case; since the legal recognition of same-sex marriage can vary widely across jurisdictions, the UK’s approach is to treat such legal unions as marriages if they meet UK recognition standards.
Recognition of the marriage is crucial because it determines whether the foreign spouse is legally considered a spouse under UK succession laws, thereby influencing inheritance rights, exclusions, or entitlements under intestacy.
In the absence of a valid will, the distribution of an individual’s estate upon death in England and Wales is governed by the rules of intestacy set out in the Administration of Estates Act 1925. These rules define who is entitled to inherit, and in what proportions.
If a deceased individual was legally married — including through a recognised foreign marriage — and died intestate (without a will), then their surviving spouse has significant rights under UK intestacy law. However, if the marriage is not recognised under UK law, then the surviving individual may be treated as a non-spouse and may not benefit under the intestacy provisions, unless establishing a claim under the Inheritance (Provision for Family and Dependants) Act 1975.
A legally recognised spouse is generally entitled to the first £322,000 of the estate, all personal possessions and half of the remaining estate, with the balance divided among biological or legally adopted children. If there are no children, the spouse may receive the entire estate. These entitlements hinge entirely on the legal status of the marriage in the eyes of UK law.
Unmarried partners, regardless of duration or emotional commitment, do not automatically benefit under intestacy laws, emphasising the importance of proper estate planning for those in non-marital or unrecognised foreign partnerships.
For individuals with international lives — such as those who live abroad, marry abroad, or hold assets in different countries — navigating which country’s succession law applies can be far from straightforward. When a person dies, the competent jurisdiction to govern the administration and distribution of their estate depends on varying factors, including domicile, habitual residence, and location of the assets.
Under UK law, the concept of domicile plays a critical role. Domicile is a complex legal status, not to be confused with residency or nationality. It reflects an individual’s long-term country of connection and legal home, and it often determines the law of succession that applies to movable property (bank accounts, shares, intellectual property, etc.). For immovable property (such as real estate), the country in which the property is located — lex situs — will usually have jurisdiction over how that property is inherited, irrespective of the deceased’s domicile or marriage status.
This means that a UK-domiciled individual with real estate in France, married to a foreign spouse, may find that French laws influence how that property is passed on, even if UK laws govern most of their estate. Additionally, countries within the European Union will apply the EU Succession Regulation (Brussels IV), which allows individuals to choose the law of their nationality to govern their entire estate in their will — but this only applies to EU member states, and the UK is not one of them.
The interrelation between UK law and foreign law in cross-border estates necessitates prudent legal planning to ensure the foreign spouse receives fair treatment and undue complexity is avoided.
An important consideration in international estates is the matrimonial property regime that applied to the couple’s marriage. A matrimonial property regime defines how assets are owned and divided between spouses during the marriage and after death or divorce.
In England and Wales, there is no standard regime that classifies marital assets. Courts rely on equitable distribution principles in divorce cases but do not automatically assume joint ownership of assets acquired during marriage. In contrast, many civil law jurisdictions — including France, Spain, and Italy — operate community property regimes where assets accumulated after marriage are jointly owned unless otherwise agreed.
The existence of such a regime abroad can significantly influence inheritance outcomes if not accounted for. For example, if a couple married in Spain elected for a community of property regime and lived under that system for many years before moving to the UK, their understanding of joint ownership may clash with how UK courts treat asset divisions and inheritance. In events of intestacy or will disputes, understanding the underlying regime becomes essential both in equitable division and tax planning.
Comprehensive estate planning in such circumstances should first identify the applicable matrimonial property regime and then consider how this structure intersects with any relevant UK laws.
One of the most effective ways to manage the complexities of foreign marriages and UK inheritance laws is to create a well-drafted will that takes international considerations into account. Multiple wills may be necessary — sometimes referred to as ‘concurrent wills’ — designed to govern distinct sets of assets located in different jurisdictions.
A common approach is for individuals to draft a UK will to govern UK-based assets and a separate foreign will to manage assets based in another jurisdiction, providing that care is taken to avoid conflict between them. It’s vital that each will clarifies that it is intended to deal only with assets in its respective jurisdiction, avoiding revocation of previous documents unintentionally.
Language is another factor. Wills written in another language for use abroad may need to be translated and notarised to be recognised or enforced, and the phrasing must be carefully checked for consistency with local regulations.
If a foreign marriage is part of the picture, the will should clearly identify the spouse, their country of origin, the locale of marriage, and their legal status in the UK. Including contingent provisions that reflect diverse legal outcomes across jurisdictions can prevent misinterpretation and facilitate probate. Where children from previous relationships exist—common in international marriages—additional complexity arises in balancing their rights with the interests of the current spouse.
Inheritance tax (IHT) in the UK can present a significant burden in international estates, particularly where a foreign spouse is involved. The rules differ considerably depending on the deceased’s domicile and the location of the assets.
If the deceased was UK-domiciled or deemed domiciled, then IHT is applied to their entire worldwide estate. The standard rate is 40% on the value of the estate above the nil-rate band, currently £325,000. Transfers between spouses are usually exempt from IHT, but this exemption is limited when the receiving spouse is not domiciled in the UK.
Under current HMRC rules, the spousal exemption is capped at £325,000 when the surviving spouse is not UK-domiciled. Anything above that threshold may be liable to IHT, unless the foreign spouse elects to be treated as UK-domiciled for tax purposes — a decision that has far-reaching consequences, particularly in future tax years and for their own estate.
Proper estate planning should consider the advantages of such an election as set against factors like exposure to IHT on personal overseas assets, reporting obligations, or treaty provisions with other jurisdictions.
Where estates span multiple countries, the risk of double taxation arises — taxes may be due both in the UK and in the country where specific assets are located. To counteract this, the UK has entered into estate tax treaties with certain countries, including the USA, France, Italy and the Netherlands.
These treaties help prevent duplication of tax and can provide mechanisms for tax relief or credits if tax is paid overseas. They typically set rules for determining which country has primary rights to tax specific portions of the estate, with the goal of eliminating or reducing double taxation.
However, not all countries have such agreements with the UK, and these treaties can be technically complex. For foreign marriages, the interaction between inheritance laws and tax treaties adds an extra layer of planning, especially where the treatment of marital property and tax liability diverges sharply between jurisdictions.
Handling international marriages within the context of UK inheritance law is rarely straightforward. The overlap of jurisdictions, tax implications, and differences in how marriages and estates are recognised demands a strategic and informed approach.
Engaging solicitors and tax advisers who specialise in cross-border estate planning is essential. These professionals can assess domicile status, interpret foreign matrimonial regimes, identify applicable inheritance laws, and draft wills that minimise conflict and taxation across jurisdictions. They also help ensure proper recognition of a foreign spouse’s rights under UK law and navigate any probate complications that may arise.
In Summary
Foreign marriages can significantly affect how estates are handled under UK inheritance law — influencing everything from intestacy rights to tax liabilities and asset division. Recognition of the marriage, the location and nature of assets, matrimonial property regimes, and careful will drafting are all central to effective estate planning. With the right legal support, individuals can ensure their wishes are honoured, their loved ones are protected, and potential cross-border conflicts are minimised.
Privacy Policy
Terms and Conditions
Disclaimer
COPYRIGHT © 2024 MY WILL AND PROBATE
