Do I need to leave everything to my spouse in my Will?

Your Will sets out what happens to your estate after your death. Without a Will, the Rules of Intestacy decide who gets what. Even without significant change in your life, such as divorce or remarriage, your Will should be regularly reviewed to ensure it’s what you want and provides for those close to you.

However, what you want may not be straightforward. For example, you may wish to disinherit someone (like a spouse) or limit their access to funds to preserve your estate for future generations. So, do you need to leave everything to your spouse in your Will?

Testamentary Freedom

In England and Wales, you can leave your estate to anyone you choose without any obligation to leave it to family members or others close to you. Technically, this includes your spouse.

Aim of The Inheritance (Provision for Family and Dependants) Act 1975

However, some people might reasonably expect to be left an inheritance. The Inheritance Act was designed to protect those who have:

Not inherited because there isn’t a Will.
Been left out of a Will entirely, or,
Not been left as much as they need.

If it’s shown that reasonable financial provision has not been made for your spouse in your Will, under the Inheritance Act, the court can change the terms of your Will.

Those Eligible to Make a Claim

Those entitled to make a claim include:

a spouse or civil partner
ex-spouse or ex-civil partner
a child of the deceased or someone treated as a child of the family by the deceased
a cohabitee who has lived with the deceased ‘as husband and wife for two years ending on the deceased’s death
a person who was financially dependent on the deceased

Time Limit

The time limit is six months from the date of grant of probate (or letter of administration if the deceased died with no valid will). This applies to all applicants, including minor children. In certain circumstances, a claim can be brought out of time, but sufficient grounds must exist.

Factors Affecting a Claim

Naturally, every case is different, and the court has broad discretion, but their decision must be based on the same principles every time, including:

the size of the deceased’s estate
the financial resources and needs of the applicant
the financial resources and needs of other beneficiaries
whether the deceased obligations towards the applicant
whether the claimant has any disabilities
the nature and longevity of the relationship between the applicant and the deceased?
other relevant circumstances

The court will also consider other factors, such as how long the marriage lasted, the applicant’s age and the financial circumstances of everyone involved. Successful claims range from lump sums or periodic payments, property transfers, or the right to live in a property for life, with it reverting to the estate on the claimant’s death.

Our Advice

For many couples, the natural choice when writing a Will is to leave everything to each other when one dies. However, life today is complex. For example, you may be going through a divorce, and your spouse is financially independent, or you may want to leave your estate to your children because your spouse isn’t good with money. Whatever the circumstances, you may have good reasons to disinherit your spouse.

But beware, the number of inheritance disputes and successful judgments continues to rise. Between 2012 and 2022, over 2,300 Will disputes were heard in the High Court, not including the substantial number of claims settled before getting that far.

So, you must speak to a lawyer. Without proper advice or a fundamental understanding of the options open to you when you make your Will, there’s a real chance that your wishes will be challenged after you die.

You can reduce the risk of your Will being challenged. For example, if you leave your spouse a life interest in a property you share, then when they no longer need to live there, your share can pass to your children.

For further information or advice about making your Will or making a claim, please contact us. We’re here to help.

Please note that all views, comments or opinions expressed are for information only and do not constitute and should not be interpreted as being comprehensive or as giving legal advice. No one should seek to rely or act upon, or refrain from acting upon, the views, comments or opinions expressed herein without first obtaining specialist, professional or independent advice. While every effort has been made to ensure accuracy, Curtis Parkinson cannot be held liable for any errors, omissions or inaccuracies.