The Sideways Disinheritance Trap

10 May 2016

Understandably, many couples like to keep things straightforward when it comes to making a Will.

Typically they will want to just leave everything to their spouse or partner when they pass away. This is so they can make sure that their partner can continue to live in their house and access their finances. They probably consider everything they have to be jointly owned with their partner, even if some of the assets only belong to one of them.

Using this couple as an example, if they had children, their Wills would probably say that whoever dies last will leave everything to their children in equal shares, which is likely to include whatever is left to them by the person who died first. Sounds sensible and straightforward, right?

Thankfully, most of the time it is straightforward. But some people don't consider that after the first person has died, the surviving partner could decide to change the terms of their own Will. They could choose to leave their estate, which includes assets from the first person who died, to someone other than the children. This could be a new partner or spouse.

This can happen accidently. If the surviving partner gets married again, it automatically cancels the previous Will that included the children. In addition, if there is no valid Will in place, the new spouse will probably receive everything or at least the majority of the inheritance under the Intestacy Rules.

This is called the 'sideways disinheritance trap'. This is because the estate moves sideways to the new partner rather than down a generation to the children.

What starts out as a loving couple wanting to keep things simple and provide for each other and their children, can quickly turn into a situation where the children have been disinherited.

An increase in blended families has highlighted this issue, with a growing number of children being born to parents not legally married and the high proportion of marriages ending in divorce.

If you are in this situation, you'll probably want to leave something to your children when you die but this can be complicated if you also want to provide for your new spouse if you die before them.

You can protect your children simply by making a Will once you remarry. This simple action can help you to avoid the situation where you disinherit your children. There are also some additional protections you can put in place to protect your new spouse or civil partner.

Using your Will to leave your assets into a Trust can be a great way to protect your children and also help to protect your new partner.

One option is to include a Life Interest Trust in your Will which means that when you die, all of your assets go into a Trust instead of being directly given to your spouse or partner.

This Life Interest Trust, managed by Trustees that you appoint, will ring-fence your assets and name your 'Life Tenant'. The person you name as your as Life Tenant will be allowed to live in your property and gain any income generated by your ring-fenced assets for the rest of their lifetime or, if you prefer, until they remarry.

Once your spouse dies or remarries, all your assets held in the Trust will be passed to your children. A Life Interest Trust in your Will can help to protect your children from accidental or enforced sideways disinheritance.

It's important to get the right professional advice and Co-op Legal Services can help explain how best to structure your Will so that your children are looked after and so is your spouse or partner.

Both of you can make Mirror Wills, which are identical and 'mirror' each other, with Life Interest Trusts, so regardless of who passes away first, your wishes and intentions will remain in place.

To discuss Mirror Wills or a Life Interest Trust call our Will writers on 03306069591 or contact us online and we will help you.

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