Increased risk of inheritance disputes post divorce or remarriage
There is an increased risk of inheritance disputes amongst family members if you have divorced, separated or remarried. It is important that you review your Will to ensure it accurately reflect your position and what you want to happen in the future.
Modern family structures can be complex when parents separate, divorce and remarry. Blended families, involve 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. This is 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. The spouse receives one half and the deceased’s birth and adopted children share the other half equally between them.
Often, this is not how the deceased wished to divide their estate. It means children receive less than the spouse and this is sometimes substantially less. Also, stepchildren and cohabiting partners are not entitled to receive anything under the rules.
Who can claim?
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 and former spouses. Any 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. The cost of the claim is paid out of the estate, reducing the amount available for beneficiaries.
Sideways disinheritance
A further problem that 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. However, 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 a relationship ends, it is important to work with an experienced Will writer. This ensures 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. However, your share ultimately passes 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 also have the chance to discuss any decisions ahead of time with your loved ones. Therefore, they don’t have any unexpected 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.
If you would like to speak to one of our experts about making a Will or any associated estate planning, call us FREE on 0800 781 6658 or email us at enquiries@estplan.co.uk
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