Published on: 29th June 2020

What is Sideways Disinheritance?

Sideways disinheritance is a term that relates to children losing out on their share of their parent’s estate as a result of remarriage. This is becoming a greater problem as people live longer and longer and are therefore more likely to remarry after the death of a spouse.

To demonstrate what sideways disinheritance is, we are going to talk through a typical scenario using a married couple (we shall call them Mr and Mrs Smith) with two children.

In this scenario, Mr Smith passes away before Mrs Smith.

With a typical mirror will, the assets of Mr Smith then pass to Mrs Smith who consequently owns all the assets.

If Mrs Smith then remarries (to Mr Brown for the purposes of this example) and passes away before Mr Brown, then Mr Brown will usually receive all of the assets as marriage will revoke the will Mrs Smith held with Mr Smith.

Mr Brown has two children and when he dies, he leaves all his assets (including those which originally were held by Mr and Mrs Smith) to his children.

In this scenario, Mr and Mrs Smith’s children receive nothing and this is a classic sideways disinheritance example.

In a scenario like this, Mr and Mrs Smith’s children are likely to want to claim for their share of the inheritance. The children of Mr Brown may be very accommodating which means this becomes less of a problem (albeit still likely more costly). If the children of Mr Brown are less accommodating then Mr and Mrs Smith’s children may want to go to court to make an inheritance claim. Not only is this costly for all involved, it is also likely to be highly distressing for all involved at what is likely to be an extremely stressful time.

So, having established sideways disinheritance as a potential problem, how can we overcome it? As with most of these things, sensible planning can make an enormous difference so by creating Wills which have a trust that is activated when the first of a couple passes, some of your assets would be protected in the above scenario and go to your children when the survivor passes away, regardless of remarriage.

A Life Interest in Property Trust within your Will is one great preventative measure for this situation as this means your share of the family home will go into a trust as opposed to being given directly to your Spouse or Partner. We recently published two case study examples on estate planning with a Life Interest in Property Trust which you can see by clicking here and here.

As this article demonstrates, planning is extremely important when it comes to your Will. Sideways disinheritance can be a real problem and it’s often something people don’t think about, or don’t want to think about when drafting their Wills as many cannot imagine the possibility of wanting to remarry after the death of a Partner. We strongly believe that prevention is better than cure in this scenario so would advise you to carefully consider all scenarios when your Will is being drafted to avoid serious problems like sideways disinheritance.

If you would like any information about sideways disinheritance or perhaps you are in a second marriage and not sure how and if this will impact you, then get in touch with us and we can arrange for one of our Consultants to discuss options with you and advise as appropriate. Please call 01732 868190 and one of our friendly team will be able to advise or visit the contact page of our website to get in touch.

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