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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.

Contact us

If you would like further advice please contact one of our Wills, Probate, Tax and Trusts experts today.

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.