The Comprehensive Guide to Blended Family Inheritance
The Rate of Formation of Blended Families
Blended Family Inheritance Issues aren’t New, Here’s the News
Democratisation of Home Ownership
Blended Family – A Term of Art
Intestacy – The Divvying Up
Intestacy & the Blended Family
Next of Kin
Inheritance Problems Where there’s a Will
Total Wealth of the Blended Family
The Ages at Which the Current Union was Formed
Graph of Wealth with Age
The Wealth of the Beneficiaries
The Future Wealth and Income of the Beneficiaries
The Ages of the Beneficiaries
More Imperfect Solutions
Life Interest Trust
Tenants in Common
Preventing Inheritance Disputes in Blended Families
Fire & Forget
The Court Case – The Biggest Losers
Power is Nothing Without Control
The 1975 Act – A Child of the Family
The Rate of Formation of Blended FamiliesOne third of all marriages in England & Wales involves at least one person who has been married previously. One third of all families in this country are blended families.32% of all marriages in 2021 involved at least one person who had been married previously. About 86,400 of blended families are created by marriage every year, additionally, there are families where the principals co-habit rather than marry.Back to Contents
Blended Family Inheritance issues aren’t New, Here’s the News
Litigators and counsellors advise their clients thus: what’s the merit of taking someone to court, if the only remedy is cash and the pickings are slim?
Why fight if the game isn’t worth the candle?
Except, of course, if you’re keen to provide the unedifying spectacle similar to that of two bald men fighting over a comb.
Litigation is a commercial decision, the sum obtained must exceed the costs.
Blended families aren’t new.
Here’s what’s new.
There’s more money in more estates.
For good and for ill, there are more estates worth fighting for.
The game is now worth the candle.
Democratisation of Home OwnershipCastles for AllMost, almost all the people you would ever meet, their house is their greatest single asset. Housing is our largest non-financial asset class. Home ownership is a means of wealth accumulation. More people have houses now, and the rate of home ownership has risen from roughly 10 percent of the population (in 1910) to more than 65.6% of us owning our houses in 2020. Indeed, the proportion of our fellows who own their own home was highest in 2007 when it was 73.6%.More of us own our own houses,. These houses are worth more than they ever were. House values have risen for several reasons, the HomeOwners’ Alliance contends the reasons include:
- The shortage of housing.
- Reduction of private sector building
- Empty homes
- Decline in affordability
- The pervasive effect of housing benefit.
- The sale of social housing at steep discounts, such property mostly ended up in the hands of private landlords
- the clumsy cancellation of the generous tax relief of debt financing of house purchase, MIRAS
- relief from taxation on the profit from sale of private homes
- several deliberately inflationary schemes as
- help to buy: equity loan
- help to buy: shared ownership
- rent to buy
- mortgage guarantee
- lifetime ISA
- first homes
- right to shared ownership
- several stamp duty holidays.
Blended Family – A Term of ArtWe Know it When We See itIn the first, blended family, like next of kin, on which we shall alight later, is a term of art. Blended family has obtained the colour of usage, but it has no legal definition or meaning.
- I’ll use “blended family” in this article to mean a family where one of the following applies:
- the birth certificates of all the children do not bear the same names in the ‘parents’ section there are two parents in the family, but the parents are not the birth or adoptive parents of all the children.
Testamentary FreedomYours to Do as You PleaseWith two exceptions, married couples are treated as individuals in matters of taxation and inheritance. A married couple’s estate would be treated as two individual estates, (the intimacy of their relationships notwithstanding).That testamentary freedom is the central feature of inheritance law in England and Wales, .In certain jurisdictions such as Scotland, several European nations, and much of Latin America, there are partial or total forced heirship regimes. Forced heirship means that certain members of the family get specified proportions of the deceased person’s estate irrespective of the provisions of any will that might exist.In certain jurisdictions with forced heirship, the rules may compel estates to be distributed among step-relatives.In England and Wales there are no prescriptions on what which relatives might get what assets from a deceased’s person’s estate. You may do as you wish with your estate.Back to Contents
Blended Family Inheritance Rights
Thanks to the principle of testamentary freedom, each of us has to the right to give our estate to whomever we please.
You are free, if you wish, to leave your entire fortune to the local cats’ sanctuary.
Whatever you wish, it’s a mere matter of expressing your wishes in writing.
By this logic, if you are free to give your estate to whomever you please, no one has any right to your inheritance.
Later, we’ll see the practical fetters to the principle of testamentary freedom. For now, we should be content that the notion of inheritance rights are like the monster of Loch Ness, non-existent.
The problems of inheritance in blended families comes in two flavours: when there is no will on the one hand, and where there is a will on the other.
Intestacy is dying without a will.
Intestacy means the state dictates the distribution of your estate.
The laws of intestacy have little regard for your family structures, finances or relationships.
Intestacy can cause the forced sale of the family home.
Dying intestate often means the estate pays more inheritance tax than is necessary in the short term. Your intestacy would, with the certainty of mushrooms after the rain, condemn future generations of your family to paying inheritance tax on your estate. In the flesh, intestacy, and the arguments arising from intestacy, are so breathtakingly ugly, they could be used as a weapon of war.
It might have been John Constable who claimed never to have seen an ugly thing. Like Constable, I never saw an ugly thing, then I witnessed the effects of intestacy.
Where testamentary freedom (in England & Wales) gives us the freedom to give our estate away to whomever we wanted in whatever proportions, intestacy exists for people who cede their testamentary freedom to the state.
Intestacy – The Divvying Up
Briefly, by the rules of intestacy, a surviving spouse would get the first £270,000 of the deceased’s estate. The surviving spouse further gets half of the estate that exceeds the first £270,000. The remainder is split among any surviving children. There are further provisions allowing any deceased child’s entitlement to be further split among that deceased child’s children.
If there is no surviving spouse, then children and other descendants get it all. If there are no children, grandchildren or such descendants, we start casting about for other relatives such as parents, siblings, grandparents, aunts, and uncles.
In the long ugly end, intestacy could grant a deceased’s estate to the Prince of Wales.
The rules of intestacy are silent on the common-law spouse because, like the tooth fairy, the common-law spouse is a figure of fantasy. The rules of intestacy pay no regard to cohabitees. The rules of intestacy were written as if stepchildren did not exist.
Intestacy & the Blended Family
In the preceding section, we saw that the rules of intestacy leave stepchildren and cohabitees in the wilderness. They are not mentioned. They are, in the eyes of the rules of intestacy, non-existent.
Therefore, questions of the following meaning are moot:
What are stepchildren’s inheritance rights?
What right does a cohabiting partner have?
My partner died without a will, what rights do I have?
What inheritance rights does the next of kin have?
Next of Kin
Next of kin is another of those terms of art. When considering the term next of kin like most things, what one sees depends on where one stands. The term might have been born so we can fit it to the elephant test,(where something is difficult to describe, but you know it when you see it).
The principle of testamentary freedom is diametrically opposed to any possible use of an order of precedence of next of kin.
The principle of next of kin would be at the periphery of relevance if we were thinking of intestacy. However, next of kin has no legal definition, and as the term has no meaning, let’s speak of it no more.
Questions of this sort arise when there is a will:
- What (inheritance) rights does the next of kin have.
- Can my stepfather keep everything, or
- Do I have to leave my stepchildren anything? – This could be the consequence of bad planning, or of unwitting, or even semi-deliberate, sideways disinheritance.
There are several grounds for difficulties with a will with which we should dispense because they are outside our purpose. These include:
- The document is a forgery
- The testator did not know or approve of what they were doing
- The testator was pressured or bullied into writing the will the way it turned out
We concern ourselves with the provisions of a valid will. In short, the document is valid, but the provisions are in dispute.
For example, Mary and John have two children. Mary dies. John takes a new wife.
John’s new marriage invalidates the will he wrote while Mary was alive [in which they left everything to each other]. John and his new wife Titi write new mirror wills (to be discussed later) leaving their estates to each other
John dies the January after the wedding, his estate passes to his new wife. On her death, the provision ‘if my spouse dies before me, my estate shall pass to my children in equal shares’, would enliven the potential of her will for difficulty.
In sum, Mary’s estate passed to her husband John. Mary’s estate joined with John’s and has passed to Titi. Mary’s estate, John’s estate and Titi’s estate have passed to Titi’s children. Mary’s children are left holding a basket of nothing.
For the sake of completeness, divorce, although it might make a mess of a will, does not invalidate a will. Marriage, however, invalidates a will.
In the outline above, if John had not made a new will, the rules of intestacy would have applied.
Acting as executor of an estate is often a case of you don’t know what you don’t know. Many such appointments are unwise.
Often executors see their appointment as opportunities to settle scores with or among beneficiaries, including withholding funds from beneficiaries.
Professional executors bring their experience and training to the enterprise of administering your estate as you’d specified in your will.
More important to a blended family, professional executors bring an emotional detachment to the matter at hand.
You might have heard of cures to the potential inheritance ills in blended families. These might include:
- life interest trusts
- mutual wills
- joint wills
- tenants in common
- mirror wills
As we’ll see, these measures are imperfect, incomplete and are liable to breed false confidence in the breasts of many a blended family.
Competent inheritance planners know from experience that each family has little in common with others. Furthermore, each blended family is one of a kind. The potential problems of which we should be aware arise from such factors as:
- the total wealth of the blended family
- the ages at which the current union was formed
- the wealth of the partners or spouses
- the wealth of the beneficiaries
- the future wealth and income of beneficiaries
- the ages of the partners
- the ages of the beneficiaries
- previous wills, where at least one party to the union had previously been widowed
- previous gifts made to beneficiaries
- the sharing of the immediate burden of inheritance tax, and
- marriage – a solution to inheritance tax.
This document is a guide to preventing rather than solving inheritance disputes. Nonetheless, the points above, some of which are discussed below, are factors an adjudicator or judge would consider if a case were brought before them.
Total Wealth of the Blended Family
To abridge an extensive exposition, the total wealth in the family is what makes it worth fighting over. We’ve all heard of folk died owning barely enough to pay for their funerals. Who’d fight over such a pitiful estate?
The Ages at Which the Current Union was Formed
The ages at which the principals in the current union came together might influence the value of the contribution to each of the participants. Generally, people become wealthier as they age. Older workers are better paid. Older people have had the time to accumulate wealth.
A 78-year-old client of mine rewrote her will because she was getting married. She and her husband-to-be made their testamentary arrangements considering the assets they brought to the union. They discussed how they wanted their respective estates divided upon their deaths.
Near the other end of the age spectrum, if a couple of 24-year-olds, saddled with student debt, each with one child but with little to their names, formed a new union, their planning considerations would be different from those of the older couple described above.
If the head, and not the heart ruled, folk would not fight over small sums of cash, especially if the sum was small relative to their wealth.
The total amount of wealth is one thing, but another is the value of the inheritance relative to the wealth of the participants. I witnessed a south London family tear themselves to shreds over £30,000.
An additional consideration is the potential impact of the inheritance value on future financial decisions, and the burdens or prospects which come with these. An A-level student might put up a stiff fight over £80,000 if the alternative was taking out student loans in medical school.
In the section title Sideways Disinheritance, we saw the potential effect of a previous will. A will might have left an estate to a surviving spouse creating the godmother of dispute. How would the estate be distributed on second death? Also, promises might have been made between beneficiaries so that on first death a beneficiary might have been persuaded not to take the gift they might have been entitled to, in the expectation that the second of the union to die would ‘do the right thing’.
Say Hadir and Lily, get married. This is the second marriage for both of them. Each had a child from previous relationships. Lily dies just after her 60th birthday. Lily’s daughter agrees to allow Hadir continue residence in the house he had shared with Lily, otherwise he’d be made homeless. In return he promises to do her right in his will, but his will had always left his estate to his daughter. Lily was never his child. Therefore, Hadir’s promise to Lily’s daughter was destined to be a waste of words, as it was never to be fulfilled.
Consider the following: a beneficiary, Mo, might want the gift made to another beneficiary, Sayeeda, accounted for in the distribution of an estate. When she was getting divorced, Sayeeda’s parents gave her £235,000. Sayeeda bought her departing husband’s interest in the property with the cash. On making the gift, their parents adjusted their estate planning to be such that on their deaths, Sayeeda’s sister got a gift approximate to £255,000, after which the remainder of the estate was divided between their daughters.
Recipients of gifts have been known to ‘forget’ gifts they might have received in the life of the testator.
The foregoing is a non-exhaustive compendium of possible problems in blended families.
More Imperfect Solutions
The following are oft proposed as salves to inheritance problems in blended families. They are so far from perfect that they confer false confidence on those who’ve put such measures in place. They could believe they’ve shunted the problems to the sidings. Unfortunately they are inadequate, so merit scant attention.
Contrast tenants in common with the other form of property ownership, joint tenants. Patricia and her brother own a flat as joint tenants. Irrespective of what they write in their wills, on Patricia’s death, her share of the flat would pass to her brother, and on his death, his share of the property would pass to her. This is also known as the principle of survivorship.
The mirror will is an administrative convenience that often sacrifices thoroughness on the one hand and fitness for purpose on the other, at the altar of convenience. Mirror wills are often the foundation of the problem of sideways disinheritance discussed above.
So-called mirror wills, and its two variants sketched below are facilitators of the leave everything to the surviving spouse school of inheritance planning. Leaving everything to the surviving spouse is the greatest single source of inheritance problems in blended families.
When two people write mutual wills, they produce two documents with an agreement that either party may not change their will without the other’s consent.
David and Elaine Frederick did the grown-up thing and created wills. Their wills had a clause stating that the will could not be changed without the agreement of both parties. Their marriage vows, like those of millions up and down the land, were, till death do us part. Elaine was widowed at 39, while pregnant with their third child. You see the flaw in the Frederick’s wills, don’t you?
Bill and Ben saw mutual wills [by which they left everything to each other] as a solution to the inheritance problems in blended families. Bill died. Ben executed Bill’s will. Ben subsequently gave all the assets of the estate to her children, leaving Bill’s children whistling.
Joint wills are similar to mutual wills described above. The difference is that both parties to the arrangement produce only one document.
Writing your will yourself. The homemade will. Where does one start?
The simplest, easiest, and most cost-effective step to preventing inheritance disputes in blended families is something all families are advised to do.
The two principals in the union, should be clear about the distribution of their assets. They should be clear who gets what on the first death, They should be clear who gets what on the death of the second of them.
They should discuss their decisions with their children.
By my count 98% of inheritance disputes could be avoided if the testators had informed the beneficiaries of their intentions. In inheritance disputes, the claimant often implies: ‘I had no idea this was what was in the will, this document couldn’t possibly reflect our parents’ wishes’.
On communicating their wishes to their families, they’ll be in the driving seat of who enjoys what assets of the family and under what conditions.
An estate planner would advise on arrangement of such assets. They would consider such factors:
- Have the two principals jointly financed the purchase of the main family home?
- Which of the family has made what contribution to any family business?
- Which of the family were given gifts in the lifetime of the principals?
- What are the financial needs of members of the family?
An estate planner would help a blended family answer the central question of this project: what is fair?
An estate planner would guide you in the exercise of the power testamentary freedom. Such a practitioner understands whomever you looked after in life, you’re expected to look after in death.
An estate planner would arrange your assets so the members of the family enjoy the benefits of the estate at the time of their choosing.
Thus an estate planner would plan the estates of the family – going beyond writing the will.
A practical if prosaic guide to revising one’s inheritance planning would be greetings cards.
Ignoring Christmas and birthdays, greeting cards indicate that you might need to revisit your estate planning. They’re usually associated with births, marriages, a dramatic increase in fortune, or a change in circumstances.
There’s also the landmark of retirement as well as the biggest life changes relevant to our purpose divorce and moving house.
In short, revise your estate planning when your circumstances alter. Examine your arrangements when the things and the people in your life change.
The Court Case – The Biggest LosersIf all fails, I’ll see you in court.Long ago, in the days when only farmers drove Range Rovers, I attended a lecture given by an eminent barrister whose name is beyond the tentacles of my memory. Till this day, her one sentence shines in my head with the clarity of crystal: ‘When a case gets to court, everybody has lost’.
- the spouse of civil partner of the deceased
- the former spouse or civil partner of the deceased (provided they’ve not entered a new civil partnership or marriage)
- person who had, for the two years before the death, lived the with the deceased in an enduring family relationship
- a child of the deceased
- a person who had been treated as a child of the family of the deceased
- any person who had been maintained wholly or in part by the deceased just before they died
CostsFat FeesThe costs of a claim, financial and emotional, are high. Count professional fees such as solicitors’, barristers’, mediators’, witnesses’ and the Court’s fees. The starting position is that the loser pays the winner’s costs. The court, in considering the conduct of the parties, can award costs against the side the court deemed to have behaved badly, including offers of settlement that have been rebuffed.If a case got to trial, costs could pass the £100,000 mark.Alison Parry, partner and head of will and trust disputes at JMW will get the last word: “say you have got an estate that’s worth £200,000. When you have got two or three people arguing over that pot of money and each person has their own lawyers, very quickly you could see half of that pot disappear in legal costs before you have got anything off the ground.”Such costs could be avoided, by the relatively simple matter of awareness of the potential inheritance problems in blended families and acting in prevention. After all this, it remains: an ounce of prevention is better than a painful pound of cure.Back to Contents
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