So, can you exclude a spouse or civil partner from your Will? As with most legal matters, the most unhelpful answer is the right one: “it depends”. In England and Wales, there is a legal principle that exists called “Testamentary Freedom”. This means that a person is free to set out who they want to benefit from their Estate, under their Will, and exclude anyone who they do not want to receive anything. This can even include the person’s children, civil partner or spouse. Therefore, technically, you can disinherit anyone under your Will. 

 

However, as you may have guessed, this is not the end of it; even if you have chosen to exclude your spouse, civil partner or other relative from your Will, there is a chance that they may be able to challenge the terms after your death. If their challenge is successful, they may still receive a portion – or all of – your Estate. 

Despite the principle of Testamentary Freedom existing under English law, the law in England and Wales does provide a counter balance to protect people who are, potentially, wrongfully not provided for under a Will. The legal basis for making a claim against an Estate can be found under the Inheritance (Provision for Family and Dependents) Act 1975. This Act sets out who can challenge another person’s Will, on the basis that they have not been left reasonable financial provision. Quite often, a challenge such as this can be seen in the media when a wealthy or famous individual dies, excluding a family member, and leaving the relatives fighting over how the Estate should be divided. 

 

Unfortunately, if you are hoping to exclude a spouse, civil partner or your children, you cannot simply state that the Act does not apply to your Will. This, therefore, explains our Wills, Trusts, Tax and Probate solicitors’ stance above: even if you exclude your loved one, they may still be able to make a claim. 

First things first, when our expert Wills Solicitors are drafting a Will on your behalf and you wish to disinherit (or exclude) your spouse or civil partner, we would always want to know why. Sadly, life can be complicated, and you may have many reasons for wanting to exclude your spouse or civil partner. You may be going through a divorce or separation. Alternatively, you and your spouse may be completely financially independent and you may feel that they are able to look after themselves, hence, you are excluding them from your Will. If you have children from a previous relationship, you may want to make sure that they receive your Estate, and not your new spouse. If we know why you are excluding them, we can provide you with the relevant advice about how you can help to try and stop any claim against your Estate. 

 

Whatever your reason from excluding your spouse or civil partner, it is important to seek the advice of a qualified legal professional, to ensure that there is less chance of there being any issues on your death. In addition, if you are getting divorced, your assets may be impacted by the financial settlement, and therefore it’s important to be clear of the impact this could have when making your Will. 

 

Another point to consider is that if you are trying to protect your Estate for your children, rather than leaving them a share of your Estate in a simple Will, there may be a type of Trust available to you that allows your surviving spouse to remain living in your property and receive the income from the Trust during their lifetime, whilst preserving the capital in the Trust for your children. 

As you will be able to see, whilst you may think that it is a case of simply not including your spouse or civil partner in your Will, it is not always that straightforward, and that is why it is always best to seek independent legal advice and to consider your options when making a Will. This will help to reduce the chance of your Will be challenged or, it if is, for a challenge being successful.