The basic principle in England and Wales is that each individual is free to make a will that leaves his or her assets as s/he chooses. There are certain rules that affect the validity of a will (for example, two independent witnesses must together witness the testator’s signature), but provided the will is valid, only people within certain categories of relationship to the person who died are entitled to challenge the effect of the will. If, as is very common, someone has died without making a will, that person’s assets are distributed according to the laws of intestacy.
These are strict rules that require the assets to go to the dead person’s spouse, children, parents, siblings etc. It is possible to challenge the effect of the intestacy, but again only people within certain categories of relationship to the person who died are entitled to do this.
How do these principles affect stepfamilies?
The most important thing to understand is that the intestacy rules do not cover stepfamilies unless the parent who died had formally adopted the stepchild. If you and your partner are married that means that you can each inherit a certain amount from each other under the intestacy rules, but that does not include your stepchildren. Only a spouse, a blood relative, or an adopted child can inherit automatically from someone who died without leaving a will.
Bear in mind also that a will that leaves assets to ‘my children’ or to ‘my brothers and sisters’ does not include stepchildren and stepsiblings. If you are living in a stepfamily, it is therefore vital you make a will that ensures that on death your assets go to the people who are important to you. It is a good idea to ask a solicitor to draft the will to make sure the wording does not cause any difficulties after your death.
Same sex couples
If you are living in a same sex relationship, you may well be thinking about entering into a civil partnership or thinking about marriage. That would mean that you and your partner would be treated as each other’s spouses for the purposes of the intestacy rules. If either or both of you had children for whom you have parental responsibility, you would each acquire parental responsibility for the other’s children. However, that does not mean that your newly recognised stepchildren would inherit under the intestacy rules. You are simply placed in the same position as a married couple with stepchildren, and so if you wish your stepchildren to inherit from you, you should make a will that includes them.
Can stepchildren challenge a will or the effect of intestacy?
If a stepchild was treated as a child of the family by a married stepparent or was financially dependent on a stepparent who has died, and there is either no or inadequate provision on the death of the stepparent, he or she can make an application to the court under the Inheritance (Provision for Family and Dependants) Act 1975. Remember that living in a household with a stepparent often means that the stepchild was at least partly dependent. The amount the stepchild is likely to receive will depend on a number of factors, including the size of the estate, the age of the stepchild, his or her needs, including any special needs, the level of the dependency etc. The application should be made within six months of the date of the grant of probate or of letters of administration, and so you should act swiftly.
What about an unmarried partner?
If you have been cohabiting with someone for at least two years before his/her death, you are entitled to make a claim under the same Act if there was no or inadequate provision for you in the will, or if your partner had not made a will. Again, the application should be made within six months. The factors that will decide how much the unmarried partner receives include, again, the size of the estate, the level of dependency (if any), and also the length of the relationship and the contributions (including caring for the home and any children) that were made to the family. Stepchildren of an unmarried couple can only make a claim on the basis of financial dependency.
Is going to Court the only option?
If you can get everyone named in the will or entitled under the intestacy rules to agree, you can enter into a Deed of Variation signed by everyone concerned that alters the will or the effect of the intestacy. That has to be signed within two years of the date of death, and does require everyone concerned to agree on how the assets are distributed. You would need help and advice from a solicitor to ensure the deed is drawn up correctly.
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