If you are part of a step family and would like to ensure that they would get a share of your assets or specific possessions should you die, it is important to create a will to specifically dictate this, especially if you have not legally adopted your step-children or married your new partner, as they may otherwise not receive anything.
Being a step parent, means that a will can be very important in trying to minimise any potential confusion or even conflict after your death. Where you may have both children and step children, the sense of loss compounded with lack of any clear specification of your wishes, can lead to issues and arguments among them, causing problems in even the seemingly strongest step families.
Benefits of a Will
Creating a will, provided the will is valid, gives you control over the distribution of your assets in the event of your death. If you die without a will, you die intestate. This is very common, and means that the state will oversee the distribution of your assets according to a set of guidelines, which seeks out any legal spouses and blood relatives.This will usually mean that half of your estate would go to your spouse, and the other half would go to your children. Unless you had legally adopted your step child/ren, they would not automatically inherit anything if you died intestate, and your assets would pass to other blood relations.
This kind of automatic divide can also lead to complications you may not have wished for. For example, it may be necessary to sell the family home to realise and split the assets, which potentially could have a huge effect on your surviving spouse if they still lived there, and placing them under both financial and emotional stress. If you want to avoid these kinds of situations, it is important to have a will.
Does this just affect the step children of step families?
No, if you are any part of a step family, and you would like your assets to go to anyone who is not related to you by blood or legally, it is crucial this is specified in your will in the clearest possible way.
If you have your own step brothers and sisters, for example, intestacy would not include any step siblings who were not legally related to you. Even in your own written will, if you specified leaving your assets to, for example, your ‘brothers and sisters’ – this would only include blood or legal siblings, so it is very incredibly important to make sure that it is precisely worded, and even individual beneficiaries are specifically named.
You would also need to be legally married to your new partner, for them to be automatically entitled to a portion of your assets as your spouse, if you died intestate. There is a legal pathway for them to contest an intestacy (for more information, read below) but the outcome is not guaranteed. Again, having a will which specifies what you would want them to inherit, is the best way to ensure that your wishes are upheld, and your family (by legal definition or not) are all supported in the way you wished them to be.
Is there any provision to challenge the provision through will or intestacy?
Yes, there are two main options available.
Firstly, in the most amicable situations, there is the option to make a change through a Deed of Variation which would allow for the provision of someone who has been excluded as a beneficiary, be it through the specifics of a will, or through the process of intestacy.
A Deed of Variation requires all beneficiaries of the will, or those entitled to inherit through intestacy, to sign to the proposed change and agree to the new distribution of assets. A Deed of Variation has to be signed within two years of the date of death.
The alternative option, is for the surviving spouse or step children to challenge a will or intestacy through the Inheritance (Provision for Family and Dependants) Act 1975.
If a step child/ren was treated as a child of the family by a married step parent, or was financially dependent on a step parent who has died, and there is no/inadequate provision for them on the death of the step parent, they can make an application to challenge that under this Act.
This is only likely to have any opportunity for success if the step child/ren was resident with the deceased step parent at the time of their death, so that their dependency is clearly demonstrable. Even then, if they were to be awarded anything, it would be calculated on a number of factors, and not necessarily be reflective of their step parent’s preferences. If the step child/ren is/are adult, and living independently, a challenge under this Act is unlikely to be successful, as step children of an unmarried couple can only make a claim on the basis of financial dependency.
If someone has been cohabiting with their partner for at least two years before their death, they are also entitled to make a claim under the same Act if there was no or inadequate provision for them in the will, or their partner had died intestate.
In either of these circumstances, it is important to act quickly and to apply to the court as soon as possible.