When most couples write a will they tend to leave everything to their partner, especially if they have children. This is due to the common belief that on the surviving partner’s death everything will simply be passed to the offspring. In many cases this works fine.
However, there are some possible scenarios that will leave the children vulnerable to being disinherited.
These typically are:
- If one partner dies and the surviving one remarries
- The couple later get divorced or legally end their civil partnership and begin new legal partnerships
This is known as sideways disinheritance and simply means that in certain circumstance the law favours passing an estate sideways rather than downwards.
First of all, divorce or legal ending of a civil partnership does not annul a will. However, any references to a former partner will no longer be valid. Instead, they will be treated as though they had died on the date the separation was made legal. For example, if you have a will leaving everything to your ex-partner, then it will be as if you have died intestate. If you have a trust in your will and your ex-partner is the executor, the trust will fail.
If you remarry, your will is automatically cancelled, potentially meaning you’ll die intestate if you neglect to write another one. In this situation, £250,000 worth of property and assets along with half of the remainder of the estate will pass to your new partner. The other half will be split between your children.
This may not be what you want.
Alternatively, if a remarriage takes place and a new will is drawn up, it can be simplest to leave everything to the other. There may well be an expectation that the surviving partner will pass on the assets to the deceased’s children on their death, but there is no guarantee this will happen.
The surviving partner may change their mind or they might fall out with their former partner’s children. They could even remarry and then leave their estate to someone else entirely.
It’s natural to want to ensure that your loved ones are cared for after you die. After all, you want your assets to be distributed in line with your wishes. However, it can sometimes be complicated when it comes to reaching a practical solution.
It can be a little more complex to set up a trust, but it can ensure that no-one is disinherited after you die.
In summary, to protect your family:
- Make a new will when you separate. Don’t wait for a divorce to be made absolute.
- Make a new will if you remarry.
- Consider using a trust to protect both your new partner and your children.
To speak to one of our will writing experts please call ELM Legal Services on 0800 019 4557