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Can You Disinherit Your Spouse?

16th February 2017

For initial advice call Co-op Legal Services on 03306069591 or contact us online and we will help you.

By Head of Wills, Solicitor James Antoniou

Making a Will is on most people's to-do lists. Deciding how you want your possessions to be passed on when you die is an important decision to make and should be properly thought through. After all, most people want to ensure their loved ones are looked after.

However, what if you want to exclude a loved one from receiving anything from your Estate? In this article we look specifically at the implications of trying to exclude your spouse in your Will. Is it even possible?

As with most things legal the rather unhelpful answer is "it depends". Firstly, when it comes to making a Will in England or Wales, you have what is called Testamentary Freedom. This means that you are free to set out who you want to benefit from your Estate and exclude anyone you choose, including your children or even your spouse. So, technically you can disinherit anyone under your Will.

However, that is not the end of the story, because even if you choose to exclude them, they may still be able to challenge the terms of your Will after your death.

English Law

The law in England & Wales provides a counter balance to Testamentary Freedom through the Inheritance (Provision for Family and Dependents) Act 1975. The Act sets out categories of people that have the legal standing to challenge another person's Will on the basis that they have not been left reasonable financial provision. This type of legal challenge is frequently seen reported in the press when a celebrity or wealthy individual dies and the relatives are left fighting over how the Estate should be divided.

Also, it's important to know that you can't state in your Will that this Act does not apply so, technically, whilst you are physically able to exclude a spouse being named as a beneficiary in your Will, this doesn't guarantee that they won't ultimately be entitled to receive something from your Estate if they bring a successful claim.

So, what approach should one take? Firstly, the initial question I would ask is 'why do you want to exclude your spouse in the first place?'

Life can be complex so there may be a number of reasons. For example, you may be going through a divorce or it may be that you and your spouse each have independent wealth and you believe your spouse doesn't need the money. Alternatively, you may want to leave your Estate directly to your children as you're concerned that, after your death, if you left everything to spouse he or she may spend it all.

Whatever your circumstances it's important to take proper legal advice. If you're going through a divorce then the terms upon which you divorce can have an impact on whether your Will can be challenged after your death.

If you both have independent wealth then it's important to ensure that both you and your spouse agree that's the case, so it's clear that you each have no expectation of receiving anything from each other. This doesn't prevent the surviving spouse from challenging your Will after your death, but it reduces the chances of it happening rather than it being a complete surprise and leaving the spouse feeling hard done by and possibly resentful.

Finally, if you want to protect your Estate for your children, you can create a type of Trust in your Will that allows your surviving spouse to live in any property that you own and also receive any income from the Trust for their lifetime whilst ensuring that the underlying capital in the Trust is preserved for the children.

As you'll note, it's not particularly straightforward but then neither is life a lot of the time. This is why it's important to understand your options and take proper advice when putting an effective Will in place. This will reduce the chances of a legal challenge being made and hopefully avoid the significant cost and delays that go with it.

For initial advice and guidance about making a Will, call our Will writers on 03306069591 or contact us online and we will call you.

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