HM Insights

Second Marriage – How do I avoid disinheriting my children?

Thinking about your Will is not always at the forefront of your mind when getting married and starting a new chapter of your life but, while it is hoped that the honeymoon period lasts forever, there remain important decisions to be made.  For instance, if you are remarrying and have children from a previous relationship, it is important to consider how you want your estate to pass in the event of your death so as to avoid disinheriting your children if this is not your intention.

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Do I need to leave my estate to my new spouse?

You can leave your estate to whomever you wish.  It is common for married couples to set up mirror Wills meaning that both of their Wills contain the same instructions.  The Wills could instruct that the estate should be paid to the surviving spouse on first death and then to the couple's children on the death of the surviving spouse.  However, where couples have remarried and have children from previous relationships, mirror Wills may not be the preferred option.  Of course, there is always the option of leaving the estate to the surviving spouse and then to any children and stepchildren on second death, but an element of trust in the surviving spouse is required here as they could change their Will at a later date.

If couples with children from previous relationships do have mirror Wills, there is always the possibility that the surviving spouse inherits everything and changes their Will to leave the estate to their biological children (or other beneficiaries) on death with their stepchildren receiving nothing.  Additionally, there is the chance that the surviving spouse inherits everything, remarries and leaves the estate to a new spouse so that none of the children receive a share of the estate.

In Scotland, biological and adopted children have what are known as Legal Rights in which they can make a claim in their parents estates, however, these rights do not extend to houses and land.  Stepchildren have no Legal Rights over a step parent's estate, even if that step parent inherited from that child's parent. This can cause great divides in families.

How do you avoid these difficulties? 

There are a couple of ways to avoid such disputes and division within the family with a little forethought and planning.  The first option would be to include children as beneficiaries in the first instance so that the estate is split between the spouse and children. It is possible in some cases that this arrangement might leave the spouse with insufficient assets to continue a comfortable life however and so an alternative would be to include a liferent provision in the Will.  This would allow the estate to be held in trust for the surviving spouse to make use of during their lifetime, or until such time as they remarry.  The surviving spouse will never own the trust assets outright and so they cannot change the ultimate destination of the assets by leaving them to their own children or a new spouse.  When the liferent trust ends, the estate can then pass to the children of the first spouse to die. 

With some sensible planning and a carefully drafted Will it is possible to safeguard your estate for your children.

Is it easy to make a Living Will?

Anyone over the age of 16 can make a Living Will, provided that they understand the nature and extent of what it means to make a Living Will.

The Living Will needs to be signed and dated by you and witnessed by an independent adult.

A copy should be given to your solicitor, your GP, any other healthcare professionals you have an association with and your family.

We're here to help

Should you wish to discuss making a Living Will, please do not hesitate to contact the Private Client team at Harper Macleod using the form below or call one of our offices on:

Glasgow: 0141 227 9344                           Inverness & Highlands: 01463 795 035

Edinburgh: 0131 247 2500                         Shetland01595 695 583 

Elgin: 01343 542623

We have solicitors and offices across the country in Glasgow (next to Glasgow Central Station), Edinburgh (next to Haymarket Station), Inverness, Thurso, Elgin and Shetland - and working from home, ready to help in person or over the phone or on a zoom call. 

We can provide the assistance you need to protect your assets and your loved ones. This will allow you to put your mind at ease, knowing everything is in hand.

Useful Links

MAKING A WILL IN SCOTLAND

POWER OF ATTORNEY IN SCOTLAND