In many families, step-children are just as close to their step-parents as biological children. However, the law does not provide them with the same protections when it comes to succession. If you die without leaving a Will, the laws of intestacy will govern who inherits from your estate.
While surviving spouses and biological or adopted children have a statutory claim, surviving step-children do not automatically have a right to inherit from the estate of a deceased step-parent. This article looks at how you can provide for your step-children through proper estate planning.
Under Scots law a surviving spouse, civil partner and children are entitled to certain legal rights when a person dies with or without a Will. Whereas you may have an extremely close relationship with your step-children, they do not enjoy the same automatic entitlement to a share of your estate. Accordingly, it is essential to ensure that if you would wish your step-children to inherit on your death, that you specifically provide for them in your Will.
Similarly, it is also important to understand that your biological or adopted children from a previous relationship would not have any automatic right to inherit from the estate of your new partner. If you leave everything to your new partner, then they can go on to distribute the assets in any way they wish. While they may distribute some of the assets to your children, there is no guarantee that they will, and they are not bound by law to do so.
For example, if your new partner were to inherit the whole of your estate and has children of his or her own (who are your step-children), then their own children may stand to inherit everything (including the estate they inherited from you) on their subsequent death – thereby leaving nothing to any children you may have from a previous relationship. While your partner may agree that your biological or adopted children will receive what is due to them, you cannot be certain this will happen. Often, such a lack of legal planning can cause disputes. A further complication could be where your partner remarries, which could mean that their new spouse could inherit everything.
Only a carefully drafted Will and proper estate planning can help you to avoid these challenging circumstances.
If you have step-children, or where you have remarried or entered into a new civil partnership, it is essential to consider who you wish to inherit from your estate and in what proportion. It would be important to discuss your instructions with a specialist Wills solicitor who can carefully draft your Will to ensure it properly reflects your wishes. Your solicitor may also advise you on other methods for ensuring your property is distributed as you would wish, such as on trusts or inheritance tax planning matters.
Where you wish to leave an inheritance to your step-children, this must be made clear in your Will. For example, you may want to express this as a percentage of your residuary estate or bequeath them a monetary amount.
In the example mentioned previously, where you have children from a previous relationship and wish to provide for your new partner, it would, for example, be possible to incorporate a ‘liferent trust’ structure in your Will. This sort of structure can provide that your estate is held in trust allowing your partner the free use of the assets and a right to any income produced by the assets during their lifetime, but preserving the underlying capital to be passed on to beneficiaries as specified in your Will on your partner’s death.
It can be useful to prepare a letter of wishes to sit alongside your Will to explain why you have chosen to distribute your estate in such a way. You may also wish to discuss the distribution of your estate with your family. Ensuring that all parties are clear on your wishes and resolving any issues can avoid conflict and difficulty after you pass away - it can also mitigate the chance of your Will being challenged.
As touched upon, your spouse or civil partner and your biological or adopted children are entitled to claim certain legal rights in your estate, whether you die with or without a Will, which must also be taken into account when considering the ultimate division of your estate where you wish to provide for your stepchildren.
Adam Swayne is a solicitor within our Asset Protection Group and specialises in estate planning and Wills. If this article has raised any questions or you would like to discuss your affairs then please complete our contact form or call 0131 225 1200.
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