What is sideways disinheritance?

What is sideways disinheritance?

‘I want to make sure that my children receive my estate once I have died’ This is something I hear a lot from clients when discussing their plans for the future.

Sideways disinheritance can occur in a number of ways. The scenarios below explain how this happens and what can be done to avoid it and protect your estate and your loved ones.

Are you in a relationship and have children? If so, you may wish for your spouse/partner to inherit your estate on your death and then your children once you have both passed away. Certainly, this seems the most common approach of couples, whether married or common-law partners.

Common-law partners would need to create a will for this to happen, as unmarried partners are not recognised by the Rules of Intestacy. For married couples, the majority – if not all- of the estate will pass to the spouse in the absence of a Will (depending on the value of the estate).

So, your spouse/partner would receive your estate as you wish. Then say your spouse/partner changes their will, no longer benefitting your children as you wish. Or they get remarried and do not create a new will that still leaves your children to benefit. (Note – a new will would be required as their remarriage would revoke the existing will).

In both of these scenarios, children could be left without receiving ANY of the inheritance you intended to give them. This is what is commonly know as ‘sideways disinheritance’ and is by far, in my experience, the number one concern of my clients.

Is there any way to prevent this from happening?

Fortunately, with the correct planning in place and the use of Trusts this can be achieved.

Any jointly held assets will always pass to the survivor, regardless of wishes expressing otherwise within a will. Commonly the major asset will be the property and often this will be owned by a couple jointly 100%. By severing the tenancy of the property, so that each individual owns their 50% (known as Tenants in Common), they are free to direct their share of the property into a Life Interest Trust, ultimately for the benefit of their children.

Does this affect my surviving spouse/partner’s right to live in the property?

No, the surviving spouse is still free to live in the property until their death, or if a certain condition is met such as if the surviving spouse/partner were to remarry or cohabit. It is not until this point that the property would pass to your children, regardless of any of the aforementioned actions that the surviving spouse/partner may take.

In addition, should the surviving spouse/partner wish to downsize or move they are not restricted to staying at the property. When purchasing the new property, they would simply own the property in the same manner, as Tenants in Common with the deceased spouse/partners Trustees.

This is by far the most common enquiry we receive from clients and at RLK Solicitors we can provide you with the solution. When it comes to your final wishes and the protection of your family we know it is important to get it right. We can help you in a range of areas to secure your future and protect your loved ones. Please contact us today to arrange an appointment, you can either complete a form or call us on 0121 450 7800.