Yes, you can generally leave your spouse out of your Will in England and Wales. However, your spouse may still be able to make a claim against your estate under the Inheritance (Provision for Family and Dependants) Act 1975. Understanding the potential risks is important before making this decision.
When making a Will, some clients say they do not want their spouse to inherit from their estate. There can be many reasons for this. They may have children from a previous relationship, wish to preserve a family business or property for specific beneficiaries, or simply have different ideas about how their estate should pass after their death.
Whilst English law generally allows individuals considerable freedom to decide who should benefit from their estate, it is important to understand that excluding a spouse from a Will may have significant legal consequences. In particular, it could lead to a claim under the Inheritance (Provision for Family and Dependants) Act 1975.
What is a 1975 Act claim?
The Inheritance (Provision for Family and Dependants) Act 1975 allows certain categories of people to apply to the court if they believe that reasonable financial provision has not been made for them from a deceased person’s estate.
A surviving spouse or civil partner is among those entitled to bring a claim. Importantly, spouses are treated differently from many other potential claimants. When considering a spouse’s claim, the court is not limited to assessing what is required for their maintenance. Instead, it can consider what financial provision would be reasonable in all the circumstances of the case.
As a result, a spouse does not need to be financially dependent on the deceased in order to have potential grounds for a claim.
What should be considered before excluding a spouse?
Where a client wishes to leave their spouse with little or nothing, it is important to understand the reasons behind that decision and the wider family circumstances.
Factors that may be relevant include:-
- The length of the marriage or civil partnership.
- The financial circumstances of both parties.
- Ownership of the family home and other assets.
- The existence of children, particularly from previous relationships.
- The nature and value of the estate.
Understanding a client’s objectives is equally important. For example, a client may wish to ensure that assets ultimately pass to children from a previous marriage rather than to their spouse’s wider family.
That is often a legitimate concern, but simply excluding a spouse from the Will may not be the most effective way of achieving the desired outcome.
Could a trust provide a better solution?
In some circumstances, a trust can offer a more balanced and practical approach.
A Will trust may allow a spouse to benefit from an asset during their lifetime, such as by living in a property or receiving income from investments, whilst ensuring that the underlying capital eventually passes to the client’s chosen beneficiaries.
This type of arrangement can help protect assets for children while still providing for a surviving spouse. The most appropriate structure will depend on the client’s assets, family circumstances and objectives, so careful planning is essential.
What if a client still wishes to leave their spouse nothing?
There will be situations where, having received advice about the risks, a client remains firm in their decision to exclude their spouse from the Will.
That is a choice they are entitled to make. However, they should do so in full awareness that a Will cannot prevent an eligible person from bringing a claim under the 1975 Act.
If a claim is made, the court will consider all relevant circumstances before deciding whether further financial provision should be made from the estate. Consequently, excluding a spouse from a Will is rarely a straightforward drafting exercise. It should be approached with a clear understanding of the potential for future litigation and the impact that could have on the estate and intended beneficiaries.
Recording the reasons
Where a client’s wishes are likely to be viewed as unusual or unexpected, it may be sensible to prepare a Letter of Wishes explaining the reasons for those decisions.
A Letter of Wishes is not legally binding and will not prevent a claim under the 1975 Act. However, it can provide context regarding the client’s intentions and thought process when the Will was prepared.
Final thoughts
The important thing is that a Will forms part of a wider estate planning process. Excluding a spouse is possible, but it should never be undertaken without careful consideration of the potential consequences and the risk of a future claim.
Taking advice at an early stage can help ensure that a Will achieves a client’s objectives as far as possible, whilst minimising the likelihood of disputes after their death.
Need advice about your Will?
If you are considering leaving your spouse out of your Will, or you want to protect assets for children from a previous relationship, our Wills and estate planning team can advise you on your options and help you understand the potential risks.
Contact Harold G Walker Solicitors to discuss your Will and estate planning needs.
