There is a risk when leaving your estate to a spouse or partner that it might not eventually pass to your children as you wished.
This is referred to as sideways disinheritance. Below we’ll look at the different scenarios where sideways disinheritance may occur as well as the various steps you need to take to avoid it.
Summary
- What is sideways disinheritance and how does it occur?
- Avoiding the sideways disinheritance trap
- Benefits of planning how to leave your estate
- Contact Our Wills Solicitors
What is sideways disinheritance and how does it occur?
Sideways disinheritance can occur in a number of ways. If you leave everything to your spouse or partner and they remarry without making a Will, then much or all of the assets you left them will pass to their new spouse. That person could then leave everything to others, such as to their own children.
If you enter into a relationship and both of you make Wills leaving everything to each other then, after the death of the second to die, to your children, there is still a risk they could end up with nothing. For example, after your death, your spouse or partner could make a new Will leaving everything to someone else. There is also a risk they could lose the assets you left to them, such as in a bad investment or in care home fees.
Sideways disinheritance is a particular risk when someone has children and subsequently enters into a new relationship. Children from a first relationship can often miss out because of this, which can result in disputes and legal claims. When this happens, relationships deteriorate and there is a danger that much of the estate assets can end up being used in legal fees.
Avoiding the sideways disinheritance trap
It is easy to avoid the sideways disinheritance trap by putting the right Will in place. You can still ensure that your spouse or partner is provided for during their lifetime, but also make sure that when the time comes, your share of assets passes to your children.
This is done by making a new Will as soon as the risk of sideways disinheritance arises, for example, on marriage. When you marry, any previous Will you have made becomes invalid, unless it was specifically made in contemplation of your marriage and refers to your new spouse.
If you wish to protect your assets for your children while also providing for your spouse or partner, your new Will can leave your spouse or partner a life interest in your property and capital. This means, for example, that they will be able to live in a shared home for as long as they wish. However, once they no longer need it, maybe through moving to a care home or because they have passed on, your share will pass in accordance with the terms of your Will to your children or another choice of beneficiary.
This will prevent your spouse or partner from leaving your assets to their own children. It also means that, should they need to move to a care home, the local authority cannot require them to use your share of your home or other assets to pay their care home fees.
In effect, your assets are ring-fenced and while they can be used by your spouse or partner during their lifetime, they do not belong to them. Instead, they are held in trust for your children or another choice of beneficiary.
Benefits of planning how to leave your estate
As well as ensuring that your loved ones will not miss out when the time comes, this type of estate planning will also give everyone certainty for the future. This can go a long way to ensuring that disputes do not arise between family members. By putting a well-thought-out Will in place, looking after those you care about, they will have security and you will have the peace of mind of knowing that your assets will be protected so that they will pass in the way that you want.
For more information, see Will writing.
Contact Our Wills Solicitors
At Witan Solicitors we can prepare the right Will for your circumstances, ensuring that your estate will benefit your loved ones as you wish.
If you would like to make a Will or you have any questions that you would like answered, email us at info@witansolicitors.co.uk or fill in our contact form and we will be happy to help you. We have offices in Birmingham, Northampton and London.
