When it comes to crafting your last will and testament, the decisions surrounding the distribution of your assets hold significant weight, impacting the well-being of your loved ones. Yet, what if your intention is to exclude your spouse from inheriting anything from your estate? In this guide, we'll navigate the complexities of disinheriting a spouse and explore the legal implications of such a decision.
Understanding testamentary freedom
In England and Wales, individuals enjoy what is known as Testamentary Freedom. This legal concept grants you the right to determine the beneficiaries of your estate, allowing you to include or exclude specific individuals, including your spouse and children.
Potential challenges
However, despite having the freedom to exclude your spouse, posthumous legal challenges may arise. The Inheritance (Provision for Family and Dependents) Act 1975 acts as a counterbalance, providing specific individuals with the right to challenge a will if they believe they haven't been left with reasonable financial provision.
Challenging a will under English law
This legal framework identifies certain categories of individuals with the legal standing to contest a will. Importantly, provisions of the Inheritance Act cannot be waived in a will. This means that even if a spouse is explicitly excluded, they may still challenge the will and claim a share of the estate.
Reasons for disinheritance
It is crucial to evaluate the reasons behind disinheriting a spouse. These reasons could range from ongoing divorce proceedings to concerns about the spending habits of the surviving spouse, or a belief in the independent wealth of both spouses.
Legal advice and communication
Seeking legal advice, especially when using services like Union Wills, is paramount. Open communication is key – discussing the decision with your spouse and ensuring both parties understand and agree with the terms can potentially reduce the likelihood of legal challenges.
Divorce impact
If you are going through a divorce, the terms of the divorce can significantly impact the vulnerability of the will to legal challenges after death. Addressing these aspects during the divorce proceedings can contribute to a more secure will.
Independent wealth considerations
In cases where both spouses have independent wealth, clear communication and mutual agreement on this matter become crucial. While it doesn't eliminate the possibility of legal challenges, it may reduce the likelihood of disputes over inheritance.
Protecting assets for children
Creating a trust in your will can be a strategic way to safeguard your estate for your children. This allows the surviving spouse to reside in designated properties and receive income from the trust during their lifetime while ensuring that the underlying capital in the trust is preserved for the children.
Protecting your property
If you own a property together with your spouse you need to find out if you own the home as joint tenants or tenants in common. If you hold the property as joint tenants then you will need to consider further steps. This is because owning as joint tenants will mean that on first death the house will pass automatically to the surviving spouse regardless of what is in your Will. Even an exclusion will not override the legal right for the survivor to receive the home. If this is relevant for you and you want your half of the house to pass in accordance with your Will rather than to your spouse you will need to take steps to sever the tenancy and become tenants in common. If you need assistance with this please let us know.
Proper legal advice
Life is complex, and legal matters are no exception. Seeking proper legal advice ensures a comprehensive understanding of your options and minimises the risk of legal challenges.
Disinheriting a spouse is a nuanced process with legal complexities. While you have the freedom to exclude your spouse, it's vital to understand the potential challenges and implications. Engaging in open communication, seeking legal advice, and considering alternative arrangements, such as trusts, can help ensure your wishes are carried out with minimal legal complications. Remember, a well-thought-out approach is essential to reduce the chances of legal challenges and associated costs.