Can my children lose out if the surviving stepparent changes the Will?

27 February 2024 Wills, Trusts & Estates Alan Roughead

Whilst making a Will is important for every individual, it is even more important for those in non-traditional families to ensure that their future wishes are laid out in black and white and protect those around them. At Macnabs we are seeing more one-parent families, blended and stepfamilies, and civil partnerships, all of which can lead to complicated estate planning issues.

An area of increasing relevance today concerns the rights of stepchildren. Stepchildren fundamentally still have no legal right to inherit from a stepparent's estate (even if the stepparent has previously inherited everything from the stepchild's biological parent on the first death), and ‘sideways disinheritance’ is therefore a growing concern for those in a second marriage and where there are children from a previous relationship. Children can lose out due to their stepparent later changing his or her own Will (or dying without a Will) and inheritance is moved sideways to other beneficiaries, or to another family, instead of to the children of the deceased. As often happens, the surviving spouse will inherit all the assets belonging to the deceased spouse, and then later they could either change their own Will to leave all the assets to whoever they please, or if they die without a Will, their assets could get passed to their own children by default under Scottish laws of succession.

A way of ensuring this doesn’t happen, whether deliberately or by accident, is to set up a Trust in your Will. Trust structures are commonly used in Wills to remove the possibility of a sideways disinheritance and therefore obtaining sound advice on Trusts is important, especially as non-typical family structures become more commonplace.

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