The increased risk of inheritance disputes after divorce and remarriage
If you have been through a divorce or separation or you are considering marrying, it is important to review your Will. There is a risk of a dispute amongst family members if your Will does not accurately reflect your position and what you want to happen in the future.
Family structures can be complex when parents separate, divorce and remarry. When families are blended, involving children with different sets of parents, it is essential to ensure that the right provisions are made that are both legally binding and in accordance with your wishes.
Wills disputes after divorce and remarriage
If you divorce, any mention of your former spouse in your Will is automatically voided. This can cause difficulties, as it could leave part of your estate without an heir, or you might not have an executor named. An executor is the individual with the authority to deal with the winding up of someone’s affairs after they die.
Should you marry, your Will immediately becomes invalid, except in the case where it was made in contemplation of the new marriage.
When someone dies without leaving a valid Will, their estate passes under the Rules of Intestacy. These rules specify who is entitled to inherit in order of preference, starting with a spouse and children.
The spouse is entitled to the first £322,000 of the net estate and all of the deceased’s personal belongings. The rest of the net estate is divided into half, with the spouse receiving one half and the deceased’s birth and adopted children sharing the other half equally between them.
It is often the case that this is not the way in which the deceased would have chosen to divide their estate. It means that children will receive less than the spouse, sometimes substantially less, and stepchildren and cohabiting partners are not entitled to anything under the rules.
However, certain individuals do have the right to make a legal claim against an estate if they have not received an inheritance or they have received less than they need to support themselves. This includes cohabiting partners, former spouses, individuals treated as a child of the family by the deceased and anyone the deceased was supporting at the date of death.
These types of claims are made under the Inheritance (Provision for Family and Dependants) Act 1975 and are generally referred to as Inheritance Act claims. They can be expensive for an estate to deal with, and the cost of the claim must be paid out of the estate, reducing the amount available for beneficiaries.
Sideways disinheritance
A further problem commonly arises in the case of secondary relationships where a new spouse or partner inherits money and property. They may have agreed to leave this to the deceased’s children in due course, but they could change their mind, make a new Will or remarry, invalidating any existing Will.
The deceased’s estate could then pass to the spouse or partner and on to their children, missing out the deceased’s children entirely.
Making a new Will following divorce or remarriage
If your relationship ends, it is important to work with an experienced Wills solicitor to ensure that your estate is passed on securely when the time comes. There are several options to allow this to happen.
For example, it is common to give a new spouse a life interest in a shared property. This allows them to live there for as long as they want to, but ultimately, your share would pass to your chosen beneficiaries, which could be your children from a former marriage or partnership.
By leaving a clear, up-to-date Will, you greatly reduce the risk of a dispute and expensive legal action in the future. You will also have the chance to discuss any decisions ahead of time with your loved ones so that they don’t have any surprises and they understand the reasons for your choices.
Showing that you have carefully considered everyone’s situation and had a professional Will drafted following clear legal advice will reassure those left behind that you have done what you can to provide for them in the best way possible.
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If you would like to speak to one of our expert estate planners, ring us on 01634 353 658 or email us at rob@pembrokewillwriters.com