What do we mean by “blended families?” blended families are those that include spouses with children from previous relationships. Whilst this does bring excitement for new beginnings and the ability to share life and experiences as a larger family, it can, on occasion, have the ability to cause conflicts that were not intended where children can be disinherited.
What kind of issues can arise?
You may have the situation where the spouse or partner may have already written their will leaving their estate to their children and since being in a new relationship, have not considered amending their Will to leave some provision for their new family. If they have married their new partner the old Will will have been revoked on marriage but without writing a new Will their estate would then pass in accordance with the laws of intestacy meaning their own children could end up being disinherited.
Where someone dies without a Will and has a new partner and would have wanted to provide for them and their children, this will not in reality happen as their estate will pass in accordance with the laws of intestacy which currently does not provide for blended families or even unmarried partners.
One common query we receive is where the spouse has left their assets to their new partner or spouse on the basis they trust their new partner or spouse to ultimately pass those assets to the children. However, this doesn’t always happen and the children can end up being disinherited.
Here are some useful estate planning tips for blended families:
Consider the use of a trust
Life interest trusts can be a useful trust for blended families as they provide protection from sideways disinheritance whilst still providing for the spouse or partner during the trust period.
This type of trust allows the life tenant to receive income from the trust and sometimes capital at the discretion of the trustees which would enable the life tenant to maintain their lifestyle.
However, when the trust ends, either due to the life tenant’s death, remarriage or otherwise, the assets that are in the trust ultimately go to those beneficiaries the testator wanted to provide for. This can therefore ensure children from a previous marriage are not disinherited.
The only point to consider with this type of trust is that it will last until the death of the life tenant or earlier depending on what the trust period states, which means the children’s inheritance will be delayed until then.
If, however, the testator does not want to make the decision as to how to divide the estate but wants the family to receive financial support as and when required, another option is a discretionary trust. A discretionary trust enables the trustees to decide how and when to distribute income and capital to the beneficiaries which makes the trust flexible. If one of the children was doing well financially, for example, the trustees may decide that they do not need to provide for that child but instead to the other beneficiaries who do require it. The testator can also write a non-binding letter of wishes which can provide guidance to the trustees when managing the trust.
Update all legal documents
We briefly touched on this point earlier but if someone has a Will in place leaving their assets to someone or various people and there is a change of circumstances meaning they are no longer in that relationship, it is a good idea for the Will to be updated to reflect the testator’s up to date wishes. While divorce does not revoke a Will, it does treat the spouse or civil partner as having predeceased the testator. However, the testator may have entered into a new relationship with a partner that has children and may want to provide for them also.
If someone were to die without a Will, their estate will pass in accordance with the laws of intestacy. If they were separated from their spouse, for example, and had a new partner then legally they are still married and the spouse would therefore benefit from the testator’s estate as the intestacy rules do not make provision for unmarried partners.
As well as the Will, any LPA’s, pension and life insurance documents should be updated accordingly.
Clarity
Ensure your Will is clear about who should receive what on death. If the Will refers to a gift being made to the children but it was intended to benefit both the children and stepchildren, the Will should explicitly say this.
It may be that the testator chooses to gift one property to the children and then the residuary estate to the partner and stepchildren. Again, it is very important the Will specifically states this.
The testator may wish to leave a greater amount to their own children than their stepchildren or provide for a child that is younger or has additional needs. As long as this is clear in the Will this is fine and a supporting letter of wishes setting out the reasons for this may be advisable.
Own the property as tenants in common
If the home is owned as joint tenants, on death, the share of the deceased will automatically pass to the surviving owner meaning children can be disinherited.
Contrast this to a property held as tenants in common. Each owner will own a share of the property which can gifted to whom they wish in their Will.
Risks of a Claim
What are the risks if someone is not financially provided for? If someone is not provided for, they can bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975. However, this is limited to the following categories of people who can claim under the Act: –
- Spouse/civil partner
- Former spouse/civil partner
- Child of his
- Child treated as a child of his
- Cohabitant
- Person who is financially dependent on him.
As you can see from the above list this does include former spouses or civil partners who have not remarried or since entered into a civil partnership therefore advice should be sought about possible claims on the estate from them.
It is good practice, where the intention is not to benefit someone from the estate, to specifically exclude them in the Will and have a detailed letter of wishes setting out the reasons for the exclusion. This comes back to what we mentioned earlier about clarity. It is also worth considering whether there are any financial orders in place in the event of a divorce that would prevent a former spouse from claiming any further provision.
Stepchildren would most likely fall within the definition of “child treated as a child of his” or “person who is financially dependent on him.” Therefore, specific advice and consideration should be sought as how to balance the provision between both the biological children and stepchildren to take preventative steps from stepchildren claiming against the estate where they aren’t being provided for at all or provided for in the same way as the biological children.
Estate planning for blended families requires careful consideration so it is important your wishes are clearly set out to avoid any misunderstandings or conflicts after your death. Seek advice from an estate planner or solicitor to ensure your loved ones are provided for in accordance with your wishes.
