How Does Your Marital Status Affect Your Will?
Last updated on January 15th, 2021 at 08:27 pm
If you make a valid will, and keep it updated as your circumstances change, you’ll be getting a say in how your assets and estate are divided upon your death. However, if you’re thinking of purposefully disinheriting a spouse, a child or someone who is financially dependent upon you, such as a partner or ex-spouse, it’s wise to be aware that they could still make a claim on your estate under the Inheritance (Provision for Family and Dependants) Act 1975.
But what if you’ve been married multiple times, you’re separated, divorced, co-habiting or widowed? What do these different marital statuses mean for your will, and the grounds for challenging it upon your death? Are there situations where your will can be challenged because of, or in spite of, your marital status? The short answer is – yes! We take a look below at the different situations and potential claims that could be made by people who aren’t included in your will.
| Situation | What could happen? |
| Married (or in a civil partnership) with or without children |
In this case you could leave your entire estate to your spouse in your will. If you choose not to, they can still make a claim for a maintenance sum out of your estate, under the Inheritance Act. Of course, if you die without a valid will, the first £250,000 of your estate automatically goes to your spouse under the intestacy laws. If you have children, half of anything over that will be shared amongst them, and the remaining half goes to your spouse. If you have no children and no valid will, 100% of your estate goes to your spouse. |
| Separated |
If you separate, you’ll want to update your will to reflect this, and decide if you still want to include your estranged spouse as a beneficiary. If you die without changing your will, it will be divided as your will dictates – so make sure you’re happy with what they’ll get, and change it if not. If you die without a valid will, your estranged spouse would still inherit as if you were married (as above). |
| Divorced |
You can choose to include your ex-spouse (or ex-spouses, if you’ve been married several times) in your will, or not. If you leave out your ex-spouse(s), and they rely on you financially for spousal or child support, then they can make a claim on your estate under the Inheritance Act for a provision of maintenance. If you die without a will, your ex-spouse won’t get anything under the intestacy laws, but, again, if they rely on you financially, they can put in a claim under the Inheritance Act. |
| Widowed |
If you’re widowed, then clearly you can’t leave your assets to your spouse, but you could choose to leave anything to your spouse’s family in your will. However, if you die without a valid will, your deceased spouse’s family don’t have any claim on your estate, unless they also qualify under another criteria of claimant (like a step-child or financial dependant). First in line are any children you have, then your parents, siblings, grandparents, aunts/uncles and their descendants. You can find out more about the pecking order of beneficiaries in intestacy page. |
| Co-habiting | If you are cohabiting with someone, and are not married or in a civil partnership, they will not inherit anything when you die, unless you’ve named them as a beneficiary in your will. If you don’t name them, they may still have a claim under the Inheritance Act. |
Who can make a claim under the Inheritance Act?
If you choose to disinherit someone, or don’t make a valid will, these people can make a claim:
- Your spouse or civil partner
- Your former spouse or civil partner, if they’ve not remarried or formed another civil partnership
- Your children or adopted children
- Someone treated as your child by way of marriage – like a step-child
- Anyone who was being financially maintained by you (in part or wholly), immediately before your death
- Anyone living in your household for the two or more years immediately preceding your death
What can you do about claims on your will?
The simplest solution is to write a valid will, keep it updated as your circumstances change, and explain clearly any reasons for disinheriting someone in favour of another party. So, for example, if you want to leave your entire estate to charity instead of your spouse and children, you should really explain your connection to that charity and why they’re a beneficiary, rather than simply focusing on your reasons for disinheriting family members.
You can also avoid claims on your estate by putting some of your assets into trusts instead. It’s best to take independent financial advice for this purpose.
