Excluding an Estranged Spouse or Child from your Will

Undesirable though it surely is, people do become estranged from their spouses and children for many reasons. This then leaves the dilemma of whether or not to provide for such family members upon our death. If you do wish to do so, then you need not take any additional action. However, if you wish to make reduced or no provision in your Will under such circumstances, ignoring the problem is the worst thing you can do.

For example, if your estranged spouse is NOT the parent of your biological children, if you do not address your estate planning and that estranged spouse inherits directly from your estate upon your death, then they shall have no subsequent legal obligation to pass what they have inherited from you to your children upon their death. This is especially important if they have their own biological children, as they may well feel stronger loyalty to them.

Although you do not need to actively seek to completely exclude your estranged spouse from your estate, you can protect your biological children’s interests after the death of your estranged spouse if you die first. A correctly constructed Will shall ensure that your children are NOT accidentally disinherited at any point after your death.

If you have a child or children, who are NOT financially dependent upon you, for whom you do not wish to provide, then you are under no legal obligation to do so. In England & Wales, we have “Testamentary Freedom” whereby we are free to leave our estate to whomever we wish. However, we are expected to provide for dependent individuals such as minor children, dependent spouses or any other people for whom we provide financial support. Please note that “provision” does not necessarily mean an outright gift. For instance, you can ensure that an estranged spouse has a roof over their head during their lifetime, then the property pass to your children thereafter. Your estranged spouse would not then be free to give away your share of the property and disinherit your children.

Therefore, if you have an adult child or children from whom you are estranged, you need not provide for them upon your death. However, it is imperative that your Will is worded correctly to ensure this happens. It is also important to support your Will document with additional confirmatory evidence that it is your specific intention for such a party or parties to receive either no benefit or reduced benefit from your estate.

Without taking necessary additional action when you are estranged from a family member, then the law prevails. Some or all of your estate shall then very likely pass to the very people for whom you do not wish it to do so.

PREVENTION IS FAR EASIER AND CHEAPER THAN CURE.

Please see our Wills page for further details.