Published on: 20th September 2022

Sideways Disinheritance and the benefits of a Life Interest in Property Trust

Sideways disinheritance arises when children lose their inheritance due to their parent remarrying. With the rise in intricate family dynamics, sideways disinheritance can impact anyone. It commonly occurs when a married couple has a simple mirror Will passing everything to each other on first death. When the survivor then inherits the whole of the married couple’s estate, the estate will be distributed as per the terms in the survivor’s Will, regardless of the wishes of their late spouse.

There are multiple causes of sideways disinheritance. Firstly, marriage revokes a Will. If the survivor goes on to remarry after the passing of their spouse without making a new Will after marriage, they will no longer have a valid Will and they would die intestate. The impact of this is that the estate may pass solely to the new spouse and not to the children or other relatives or friends that had previously provided for. 

Alternatively, the survivor may choose to amend their Will. After the passing of their spouse, they would be able to amend their beneficiaries and there is no protection for their children, or their late spouses chosen beneficiaries.

A Casey & Associates solution to avoid your children or chosen beneficiaries from losing their inheritance due to sideways disinheritance is to include a Life Interest Trust within your Wills. This trust can protect a persons share and interest in their property (usually 50%) after first death for the testator’s chosen beneficiaries. The surviving spouse is able to amend their Will after first death but the share within the trust will remain protected. If the surviving spouse does remarry or dies intestate, the protection from their late spouses Will remains unaffected. There is also the added benefit of protection for the family if the surviving spouse should go into care.

The surviving spouse will have the absolute right to remain in the property and can gift their share of the property in their Will as they wish.

An example of how a Life Interest Trust within your Will can protect again sideways disinheritance is as follows:

Mr and Mrs Green write simple mirror Wills. On first death they wish for everything to pass to each other and on second death they wish for their estate to pass to their two children equally. Mr Green passes away, and as their Wills state, Mrs Green inherits everything including the family home.

A few years pass and Mrs Green meets and marries Mr Jones. Mr Jones has two children of his own, but Mrs Green does not see them often and remains very close to her own children. After a year of marriage Mrs Green also passes away. Mrs Green never rewrote her Will. As marriage revokes a Will, Mrs Green dies intestate. Due to the laws of intestacy and the size of Mrs Green’s estate, everything passes to Mr Jones. After Mrs Green’s passing Mr Jones rewrites his Will passing everything to his two children. In this situation Mr and Mrs Green’s children receive nothing from their parent’s estate due to Mrs Green not rewriting her Will after her marriage. Equally if Mrs Green did rewrite her Will and decided not to include her children, despite it being Mr Green’s wish for his children to inherit from him or Mrs Green, they will receive nothing.

If Mr and Mrs Green included a Life Interest Trust in their Wills, Mr Green’s 50% share of the family home could have been protected for his children to inherit on Mrs Green’s passing, regardless of whether she rewrote her Will or died intestate.

Speaking with one of our consultants is the best way to ensure that your estate planning needs are met. If you would like a no-obligation appointment, please call our client services team on 01732 868190 or by clicking here.

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If you wish to give instructions or require general information about our Wills, Lasting Powers of Attorney, or Trusts then we will carry out a telephone or Zoom appointment. However, if you wish to give instructions to one of our Consultants and you feel that you can only do this at a Face to Face meeting we are offering, at our Consultant’s discretion, a limited number of Face to Face appointments in most of the areas we normally cover (subject to Government advice). To see the areas we normally cover please click here. To arrange an appointment please telephone 01732 868190 or click here.

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