Stepchildren and considerations when making a will
14 March 2017
Do you have stepchildren?
Under the laws of intestacy, a stepchild will not automatically inherit from your estate unless they have been legally adopted by you.
If you do not wish for anything to be passed onto a stepchild, then you still need to take care. If you do not leave a will, or if you do not make reasonable provision for stepchildren in any will you do make, then a stepchild may still be able to make a legal claim against your estate, even if they were not financially dependent upon you. This is the case whether the child in question was an official stepchild of the deceased or merely someone the deceased treated as a stepchild prior to their death.
A claim brought by a child who believes they have been unfairly left out of a will, or not adequately provided for, will be brought under the Inheritance (Provision for Family and Dependants) Act 1975. This Act allows children who were treated as a child of a marriage or civil partnership, to which the deceased was a party, to bring a claim against the deceased’s estate. Since 1 October 2014, it has also allowed children who were treated as a child of a co-habiting couple, to which the deceased was a party, to bring a claim. Indeed, it is now possible for any child who was treated as a child in relation to any family arrangement, in which the deceased assumed the role of parent to the child, to bring a claim.
Have your children become stepchildren following re-marriage?
Couples with children from previous relationships have a choice when making wills. They can make ‘mirror’ wills, which leave everything to each other on the first death and on the second death divide the estate between the children of the respective families. This is the simplest approach but is based entirely on trust, as if you die first then your spouse is free to make a new will leaving everything to their own children only.
The alternative, watertight approach to ensuring that your children will inherit your estate, involves creating a ‘life interest’ trust in your will. This will leave your new spouse with the security of a right to the income from your assets and the right to live in your house for the remainder of their life, but the capital of your estate is always protected for your children, who will inherit when your spouse dies. Such trusts can be set up in a flexible way so that your spouse can move house and to gain access to some of the capital if they need it and your executors agree.
The important thing is that couples take professional advice together so that they know the provision they make will work for everyone.
The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. The law may have changed since this article was published. Readers should not act on the basis of the information included and should take appropriate professional advice upon their own particular circumstances.