Making a will is a fundamental part of ensuring your estate reaches your loved ones after death. For many people, this is a straightforward process, with the majority of estates passing to direct family members, such as a spouse or child.
However, in some circumstances, you may wish to exclude your spouse from inheriting any or all of your estate.
In this article, we’ll explore the subject of disinheriting your spouse in the UK, along with the essential elements you need to consider before choosing to do so.
Can You Disinherit Your Spouse?
Like many elements of the law, the answer to whether you can disinherit your spouse in the UK comes with its own shades of grey, thanks to the following two elements.
Testamentary Freedom
If you’re creating a will in England and Wales, the ball is very much in your court. Thanks to testamentary freedom, you’re free to set out who you want to benefit from your estate, as you see fit.
When writing your will, you have the choice to include or exclude individuals, which covers your spouse and other family members.
So, job done?
Well, not quite. While you may be in charge of what goes into your will, there is no guarantee that your wishes won’t be challenged after your death.
The Inheritance Act 1975
The Inheritance (Provision for Family and Dependants) Act 1975 provides a check on Testamentary Freedom in England and Wales and sets out a legal basis for claiming against a deceased person’s estate on the grounds that person has not been left reasonable financial provision.
It is this legal basis that often rears its head when multiple parties argue over how an estate should be divided between them.
Plus, the Inheritance Act 1975 cannot be superseded by your will, meaning you can’t write into your will that the act doesn’t apply. So while you may be able to exclude your spouse in your will, there is no guarantee that they won’t be entitled to part of your estate following a successful claim.
So, what steps can you take?
Well, it goes without saying that when it comes to this area of the law, you should seek legal advice. After all, this is your estate that we’re talking about.
Start by asking yourself an obvious question…
Why Do You Want to Disinherit Your Spouse?
We ask this question because the answer you give can have important consequences for your next steps.
The reasons for wishing to disinherit a spouse can vary widely. You may be looking to protect your estate for your children and ensure it is not all spent before they are ready to benefit, or you may both be independently wealthy.
These are common examples, and the legal approach you take for each could be very different.
In the first example, one option would be to create a trust for your children that is protected. Your spouse could then continue to live in any property you own and benefit from any income created by the trust.
That means your children’s inheritance is protected and your spouse is not left out in the cold.
Where two independently wealthy individuals are involved, the first step is for both parties to agree they expect no inheritance from the other. This would not eliminate the possibility of a spouse making a claim on your estate, but would provide a stronger defence.
Furthermore, having this conversation removes the risk that you and your spouse are not on the same page when it comes to inheritance. In this example, the last thing you want is for disinheritance to come as a surprise.
These are two relatively straightforward examples, but as we all know, life is rarely straightforward. The specifics of your relationship with your spouse and why you want to disinherit them are unique to you, which means you need a unique solution.
That’s why, when it comes to disinheriting your spouse in the UK, you should always seek legal advice.
What about Other Relationships?
When it comes to setting out your will, it is important to consider any relationship situations that could impact how your estate is divided.
The examples we laid out above apply to couples who are married or in a civil partnership, but what other situations or relationships should you consider?
- Divorced: If you have one or more ex-spouses, it’s important to realise they may still be entitled to a provision of maintenance from your estate under the Inheritance Act 1975 if they rely on you financially for spousal or child support.
- Separated: If you’re separated from your spouse, you’ll need to update your will to reflect this and decide whether to include them or not. If you die without a valid will, your estranged spouse would inherit as if you were still married.
- Co-habitation: If you’re living with someone but are not married or in a civil partnership, they will not automatically inherit anything unless specified in your will, though they may have a claim under the Inheritance Act.
Of course, each of these situations have their own legal subtleties, so if any apply to you, ensure you speak to a solicitor to learn more.
Can You Disinherit a Child?
Like the process of disinheriting a spouse, testamentary freedom allows you to set the terms of your will as you see fit and even disinherit a child.
However, the Inheritance Act 1975 provides children with the same option to challenge a will on the basis that they’ve not been left reasonable financial provision. Although it is difficult for an independent adult child to make a successful claim, these are becoming increasingly common, particularly if the child is not wealthy in comparison to their parent.
Therefore, it is not possible to guarantee a child does not receive a portion of your estate upon your death.
It’s also worth being aware that if your spouse has a child not directly related to you who you want to leave an inheritance to, it’s important to have a will that names them as a beneficiary.
If you don’t have a will, the Rules of Intestacy will take precedence and your spouse’s child will be unlikely to be recognised as a beneficiary unless you have formally adopted them.
Conclusion
Writing a will is an essential part of ensuring your estate ends up in the hands of your chosen loved ones. Like any important document, appropriate legal advice should be taken to give your will the best chance of being executed as you wish it to.
This is even more important when considering whether to disinherit a spouse or child.
For more advice on creating a will, click here to get in touch with our legal team.
