While many of the families who seek our advice on planning for inheritance remain a traditional structure, there are increasing numbers of more complicated families. There are often challenging issues to resolve when advising on succession planning for modern-day families.
As the number of second and third marriages increase, the concern for many who have children from a first marriage, will be how to meet the needs of their current spouse, while ensuring that their children are not denied their inheritance. One option is to create a Will under which the surviving spouse is given a life interest in the estate, on the basis that the assets will eventually pass on to the children of the first marriage, on that spouse’s death. An alternative is to trust the surviving spouse to do the ‘right thing’, which might perhaps be to leave their estate divided between the children of each side of the family.
What happens if the surviving spouse sets up a new Will leaving their estate entirely to their own children, leaving out the children of their former spouse? These children may be effectively disinherited, since some will be unable to make a claim against the estate.
The Inheritance (Provision for Family and Dependants) Act 1975 sets out the categories of those who are permitted to make a claim against an estate, where they feel that the Will has not made reasonable provision for them. One category is children of the deceased, and another is those who have been ‘treated as’ a child of the marriage. Whether an adult child can make a claim for a share of their step-parent’s estate will depend upon their age at the time of the second marriage. If the relationship began after that child had left home, it will not be possible for a claim to be made. The child is therefore effectively denied their inheritance
It is key that the possibility of such an eventuality is considered, and that the terms of the Will are drafted to prevent this outcome.
The Intestacy Rules (which determine how an estate passes where no Will is left) have not kept pace with the changing structure of society. The Intestacy Rules do not provide for any automatic inheritance by unmarried partners, however long the couple have lived together. A claim against the estate can be made by the surviving partner, but only if they have been living with the deceased throughout the two years to the date of death, or were receiving financial support from them. It is clearly vital that unmarried partners have created a valid Will providing for the surviving partner, and that the terms of the Will are kept up to date in light of any change in circumstances.
For advice on Wills, Trusts, Lasting Powers of Attorney and the administration of deceased estates contact Shelley Faulkner, and the other members of the private client team at AMD Solicitors on firstname.lastname@example.org or call 0117 962 1205. For advice on claims under the Inheritance Act contact Alison Dukes on email@example.com or call 0117 962 1205. You can also call into one of our four Bristol offices:
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