What is Sideways Disinheritance?
Sideways disinheritance is caused where a surviving spouse remarries. The surviving spouse becomes the recipient of most or all of the estate, and the children are left without any share of the remaining estate upon the death of the surviving spouse. The estate moves sideways rather than down a generation.
This can happen for a number of reasons, both accidental and deliberate.
Why does Sideways Disinheritance Happen?
On the death of a parent, an estate is typically transferred to the surviving spouse to ensure that they can remain in their home, and continue to have access to finances. Under normal circumstances, the surviving spouse would typically leave most or all of their estate, including what was left to them by their partner to their children.
Sideways Disinheritance can happen where a surviving spouse remarries. In this case, there can be several causes:
The will of the deceased spouse is effectively cancelled upon marriage to someone else.
The surviving spouse may change the terms of their will, or write a new one
Where no will is written the intestacy rules apply and the surviving (new) spouse inherits most or all of the estate including the deceased spouse’s estate.
The surviving spouse may write a new will that excludes the children partially or completely.
The surviving (new) spouse dies without a will so intestacy rules apply so the children may receive nothing.
This can be accidental where there is no will, or a will is created without proper consideration for how the wishes of the deceased spouse would have wanted the estate to be shared. Or a new will can be written to include some individuals and not others.
So the wishes of the first spouse in these circumstances have not been considered, and no structure is in place to ensure that they are.
How to Avoid the Sideways Disinheritance Trap
This might seem like a minefield but there are some simple steps that you can take when you write your will to ensure that your wishes are carried out, even if your remaining spouse remarries after your death.
· Life Interest Trust in your Will
If you set up a Life Interest Trust in your will all of your assets are transferred into a trust instead of being given to your spouse or children. A Life Interest Trust is managed by trustees who you appoint. You can appoint a ‘Life Tenant’. This is a person that you name who can live in your property and benefit from any income derived from your estate for the rest of their life, or until they remarry if you prefer.
Once your Life Tenant dies (or remarries) the assets in the trust are transferred to your children (or whoever you name). A life Interest Trust can help protect your children from accidental sideways disinheritance.
· Mirror Wills
You and your spouse can write wills that mirror each other. Essentially they are the same, include a Life Interest Trust, and ensure that the wishes of whoever dies first are carried out.
· Write a New Will
If you lose your spouse and eventually remarry you can write a new will. This prevents the possibility of accidental sideways inheritance. But it's a good idea to keep your will up to date and review periodically so that your will keeps up with your circumstances.