Can I cut my spouse out of my Will?
27th July 2022 by Kate Mansfield
When you make your Will, you are entitled to leave your estate to your choice of beneficiary. While this means that you can choose to cut your spouse out of your Will, there is a chance that they may still be able to make a claim.
In England and Wales, everyone aged 18 or over who has sufficient mental capacity can make a Will leaving their wealth and possessions to whoever they want. This is known as testamentary freedom.
The Inheritance (Provision for Family and Dependants) Act 1975
The Inheritance (Provision for Family and Dependants) Act 1975 (the Act) allows certain individuals to claim against the estate of someone where they did not receive reasonable financial provision, but had the expectation of being supported.
A spouse can bring a claim under the Act if they can demonstrate that the lack of support was not reasonable. If asked to intervene, the court will look at the standard and style of living they had while the deceased was alive and their reasonable expectations as well as what an individual might have expected to receive from a divorce. The level of support awarded could therefore be higher than simply enough to cover day to day maintenance.
Individuals who can claim under the Act include a spouse, civil partner, former spouse, former civil partner (neither of these persons should have remarried), someone who had been living with the deceased as if they were a spouse or civil partner for two years before their death, a child of the deceased, someone who was treated by the deceased as their child and anyone else who was being maintained by the deceased at the time of their death. This could be by way of maintenance payments, provision of housing or the giving of substantial gifts.
Planning for the future
If you do want to leave your spouse out of your Will for some reason, perhaps because you are both well off and have agreed not to leave any money to each other or because you want to ensure that your children are provided for in the future, you are advised to speak to a Wills expert.
There are steps that can be taken to reduce the risk of your estate being left where you would not want. For example, if you leave your spouse a life interest in a property that you share, then when they no longer need to live there, your share can pass in accordance with the terms of your Will, which could be to your children.
If you have been married and you are divorcing or you intend to remarry, you should also contact a legal expert as these steps will affect any existing Will. On divorce, your former spouse is no longer entitled to receive anything from your estate. If you marry, any existing Will becomes invalid, unless it was made in contemplation of your marriage.
If you have any further questions relating to your Will please contact a member of Laceys Private Client Team on 01202 377984.
Kate Mansfield
Partner — Private Client
Direct dial: 01202 377853
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“We have had the pleasure of Kate’s sensitive and unwavering professional support for a number of years. She has always been able to combine her deep expertise, with practical context and a tone of voice that gently escorts you through, often difficult decisions. We could not recommend Kate highly enough, both professionally and personally.”
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“Kate was extremely knowledgeable, straightforward to deal with as well as sympathetic during what was a difficult time. I felt in good hands!”
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“We were treated with respect and felt our wishes were taken in consideration. The patience shown in helping us understand the implications of decisions was outstanding.”
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“Very efficient and welcoming. Understood my access requirements and my unique concerns thoroughly.”
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“Mrs Mansfield has been exemplary in every respect. She is an excellent listener and has the ability to explain complex issues patiently and emphatically. We are fortunate in having her as our legal adviser.”
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“Professional, always available for a phone enquiry. Always informed me as thing's progressed. Excellent company with very pleasant and helpful front of house. My sincere thanks.”
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“Kate took the trouble to understand the particularities affecting my Will and found sensible ways of dealing with them.”
Kate is a Partner in our Private Client Team and has 25 years’ experience in private client work, specialising in wills, tax planning and estate administration. Kate has worked in this area since she qualified and has assisted thousands of families and individuals.
Kate qualified as a solicitor in 1995 after obtaining a 2.1 in Law from the University of Kent. She completed her training contract with Laceys and became a partner in 2002.
Kate is a full member of the Society of Estate and Trust Practitioners (STEP) and sat on the STEP committee for 6 years. She has also taught on the Legal Executives course at Bournemouth & Poole College.
Kate enjoys the personal side of the work and the satisfaction of assisting the bereaved and families with complex affairs, whether it be complex financial aspects or those where a diplomatic hand is required. She prides herself on being able to explain the legal position in plain English.
Out of the office she enjoys keeping fit. She enjoys going to the gym and getting out into the Dorset countryside on her road bike. Cooking, particularly baking, is also a passion.
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