little girl with baby brother, reading a book. concept for blended families and children

Inheritance laws have fallen behind the times and modern, blended families are not yet considered a legal entity – which is why it’s so important that you set out your intentions in a Will.

This article was written by Josh Townsend, paralegal apprentice, and Tamara Hasson, Consultant, from our Inheritance and Trust Disputes team.

Life has changed a lot for all of us since the Wills Act 1837 came into force. How we live our lives and who with would be unrecognisable to the draftsmen at that time, so it’s not surprising that despite the Act remaining in force, there are concerns that it is not meeting the needs of the modern family.

Inheritance laws haven’t kept up with modern times

The dynamics and structure of families have changed. Getting married forever as the starting point to having children in no longer the norm. Marriage rates are falling and divorce is an everyday occurrence. Having children is no longer contingent on getting married and step-parents have moved from the evil caricature of fairy tales to roles where their contribution is considered both positive and desirable.

Our language to describe families has changed at the same time and the blended family is a good description for many of our home lives. However, while our language has evolved, the law relating to Wills and what happens without one, has not moved quite so fast.

What exactly are ‘blended families’?

Blended families are, in short, a family unit where one or both parents have children from a previous relationship. They have then combined, or ‘blended’, to make the new family. The partners do not need to be married for the term to apply.

However, the blended family is not a legal entity when it comes to the inheritance laws of England and Wales and that can be where the problems begin.

Blended families and estate planning

In a recent study, the Society of Trust and Estate Practitioners (STEP) found that an increase of blended families is leading to increased complexity in estate planning.

Failing to discuss matters with relatives and not planning for your future early can lead to possible litigation and the breakdown of family relationships. Generational differences, distrust and difficult relationships are cited as the potential causes for future litigation.

If a parent in a blended family dies, issues could arise if they died without leaving a Will. When this happens, it is known as dying ‘intestate’. Claims are frequently made in estates where a parent of a blended family has died without having left a clear Will or having discussed their plans with their families.

While the myth of the ‘common law marriage’ is still going strong, it is definitely a myth. If you live with a partner but you are not married or in a civil partnership you will have no automatic rights to inherit from each other’s estates. The effect of this can be devastating.

A case study

Alex and Marta live together but they’re not married. They have two children aged four and eight. Marta also has an older daughter, Lisa, from a previous relationship, who is now fifteen.

The couple bought a house together which has a mortgage. They took out some life assurance which was to help pay the mortgage off if something happened to one of them, but it is not specifically linked to the mortgage or each other.

If Marta dies, Alex will inherit anything they owned in joint names as joint tenants but everything else – including the life assurance policy – will go in equal shares between Marta’s three children. That leaves Alex in the position of looking after two, possibly three, children with all the costs that that incurs, at the same time as needing to go out to work to meet those costs and get the mortgage paid off.

Alex could make an application to the Court to receive a greater share of Marta’s estate – but that means suing the children who are the beneficiaries of Marta’s estate. That will be costly and unpleasant and Lisa’s father may not agree to her share being reduced to help Alex out. Any agreement would need to be approved by the Court on behalf of the three children. All of the expenses for the claim are likely to come from the estate – and they are likely to be very significant.

How blended families can protect themselves

The law is a blunt instrument at times and does not always bring about the result you hoped for. If you would like to put some extra protection in place for your blended family, we strongly recommend putting a clear and well drafted Will in place.

If you would like assistance with drafting a Will that protects your family, our specialist legal advisors would be happy to help you.