Sideways disinheriting is extremely common and can be very upsetting in the aftermath of a loved one passing. It has been highlighted by the case of Scarle vs Scarle when stepsisters battled in court to inherit their respective parents’ estate. Unfortunately, despite both losing a parent, only one stepsister would win the case, and in so doing was the only beneficiary of the combined estate of her mothers and stepfathers, leaving the other stepsister with nothing – except legal bills!
Sideways disinheriting
Sideways disinheriting is a term and comes in to play when a parent re-marries/marries a new partner. As there is still a huge percentage of adults without Wills, for example if a father has remarried and then passes away without a Will his estate will default to his new wife. If he has children from a previous relationship, they will receive nothing. If then the new wife passes away without a Will, then the combined estate will follow her succession line. This means money, property, and such assets, but also belongings and sentimental items. This can be heart breaking as children are left with nothing following the loss of their parent. Remember also marriage revokes a Will so if a parent had a Will but remarries that Will no longer stands and when they died it would be as if no Will was in place.
If the second marriage has occurred following the death of one parent, then chances are the children will have lost out on any inheritance from either parent at all. With a lot of the population relying on inheritance to either get on the property ladder in the first instance, or to be the only way they can imagine being able to repay their mortgage, becoming completely disinherited can be devastating.
Protect your children
There are ways we protect our children from the risk! Firstly, be advised that all couples (married or otherwise) should write or review their Wills together. This will help ensure clear advice can be given to meet the individual needs of each family unit.
Generally speaking, a couple who share children would be advised to use Will trusts to gift “ownership” of assets/shares of an asset to their children even on a first death basis. This means the assets will not pass into the surviving spouse’s estate, to potentially then be lost in future remarriage. The Will trust can allow the surviving spouse to use/enjoy the asset for the rest of their lives though, and upon their death the trust is closed, and the children would ultimately receive the asset as per the Will of the first parent.
This same style of trust can be used in a second marriage to ensure a new spouse can continue to live in shared property etc, but insuring respective children receive their parents share upon second death.
If a couple are together but have children from previous relationships, then both sets of children should be considered in both Wills. A key question to ask yourself is how important is it that your blood line receives from your estate?
If this is extremely important, then again, the use of a Will Trust will gift your assets to your children but can allow your new spouse to continue to live in the house/enjoy the financial benefits, as previously described. If your children are grown, and their need for your assets is reduced then you might wish to include them alongside your stepchildren as beneficiaries on a second death basis in both yours and your new spouses Wills.
This would mean upon first death the surviving spouse owns everything, but upon their death the estate is then divided between theirs and your children. The risk is, if you pass away first, your surviving spouse could change their Will to remove your children or re-marry again (thus revoking the Will you wrote together). So, if you have decided that for you it is extremely important that your children receive assets from your estate, and the thought of another family benefiting if your partner were to remarry upsets you, then you need to get in touch to review or update your Wills.