Traditionally, first deceased spouse’s naturally wish for their estate to pass to their surviving spouse, and then to their children thereafter. An increasing modern problem is that once the estate passes to a surviving spouse, the entire estate value is then deemed to belong legally and solely to that surviving spouse, so you can therefore albeit accidentally be disinheriting your children.
Should a surviving spouse subsequently either remarry or cohabit with a partner, the ENTIRE estate value is then in potential danger of either passing to a new spouse because the surviving spouse did not have a legally valid Will, or in some form to a surviving cohabiting partner, rather than biological children or other desired beneficiaries.
A recent legal case (Banfield v Campbell 2018) ruled that a cohabiting partner was entitled to benefit from the deceased’s estate despite the deceased wishing for her estate to pass to her biological son. The reason being that the deceased had previously been providing her cohabiting partner with a home before her death, and that partner was financially worse off after her death.
Likewise, the courts are regularly asked to rule upon cases where a remarried surviving spouse had no valid Will so the majority, if not all, of their estate passed by law to their surviving spouse rather than their biological children. Courts rarely find in favour of the children because the law of surviving spouse prevails.
An effective solution to these problems is to ensure that whilst both original spouses are alive and maintain their mental capacity, they ensure that their Wills reflect that in the event of first death, the first deceased spouse’s estate value is ultimately ringfenced for their biological children after the death of their surviving spouse. The surviving spouse would continue to enjoy full use and benefit of their deceased spouse’s estate during their lifetime and would see no physical difference. However, the worst-case scenario would then be that only the surviving spouse’s estate value is in danger of a successful claim by a new spouse or cohabiting partner.
Wills having been in existence for a while almost certainly do NOT contain this protective element, and the above-described problems continue to exist. Therefore, it is very important to have your Wills reviewed by a qualified practitioner to ensure that your children or other desired beneficiaries cannot be accidentally disinherited from your estate in favour of a new spouse or cohabiting partner of your surviving spouse.
Please see our Wills page for further details.