Can You Disinherit Your Spouse?

31 January 2020

By Head of Wills, Solicitor James Antoniou

When making a Will, deciding how you want your possessions to be passed on is important and should be properly thought through. After all, you'll want to ensure your loved ones are looked after.

However, what if you want to exclude a loved one from receiving anything from your Estate when writing a Will? In this article we look specifically at the implications of trying to exclude your spouse when making your Will and consider if it's 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 in your Will and exclude anyone you don't want to inherit from you, 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. Even if you choose to exclude your spouse, they may still be able to challenge the terms of your Will after your death.

Challenging a Will under 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.

You can't state in your Will that this Act does not apply. So, technically, whilst you are physically able to exclude your spouse from your Will, this won't prevent them from being able to bring a claim under this Act. If they do bring a successful claim then they could still ultimately be entitled to receive something from your Estate even though your Will says otherwise.

Why Disinherit Your Spouse?

So, what approach should you take? Firstly, when using the Co-op Will Service, we would ask '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 neither has an expectation of receiving anything from the other. This doesn't prevent the surviving spouse from challenging your Will after your death, but it reduces the chances of it happening. If you don't have these conversations while you're alive, the terms of your Will could come as a complete surprise when you die, leaving your 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 making a Will. This will reduce the chances of a legal challenge being made and hopefully avoid the significant cost and delays that go with it.

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