Can You Disinherit Your Spouse?

sarah ryan
Sarah RyanAccount Manager @ Lawhive & Non-Practising Solicitor
Updated on 22nd April 2024

Everyone has the freedom to decide who inherits assets in their will. This is called testamentary freedom. Therefore, you have the right to include someone in your will or cut them out of it, including your spouse. 

can-you-disinherit-your-spouse

That being said, certain individuals can make a legal claim on an estate if they are financially dependent on the deceased and feel they have not been provided for in their will. Therefore, when you’re making or updating a will, it’s important to understand and consider the potential consequences of cutting out close family members. 

In the UK, it’s technically legal to exclude your spouse from your will, a process known as disinheriting. 

However, the Inheritance (Provision for Family and Dependants) Act 1975 aims to make sure spouses aren’t left in financial trouble if disinherited. Therefore, under the Act, a disinherited spouse can challenge a will if it doesn’t provide them with ‘reasonable financial provision.’ 

Does that mean they definitely will make a claim on your estate? Not at all. However, it’s important to be aware of potential legal disputes that may arise if you do disinherit your spouse. 

Why disinherit your spouse? 

There are lots of different reasons for disheriting a spouse, most of which are deeply personal and unique to the testator's situation. 

One of the most common reasons for disheriting a spouse is estrangement or separation. This is when you no longer have a signification relationship with your spouse, but you stay legally married. In these situations, depending on the testator’s situation, they may wish for their children to inherit their estate over their spouse. 

Similarly, if a person is divorced and gets married again, they may want to prioritise their children from a previous marriage or relationship over their current spouse, particularly if assets were acquired before the marriage. 

Regardless of why, if you’re considering cutting your spouse from your will, seeking proper legal advice from a wills, trust, and probate lawyer is highly recommended - especially if you’re going through a divorce or you want to protect your estate for your children. 

An experienced solicitor will help you figure out what you want to achieve from disheriting your spouse, advise you of the potential consequences of doing so (such as your will being challenged after your death), and advise on potential alternative routes to protect your estate for your loved ones, such as including a trust in your will. 

What are the rights of a spouse under UK law?

When a spouse dies, the surviving spouse has certain legal rights aimed at safeguarding their interests and ensuring fair treatment, regardless of the terms of the deceased will. 

Right to claim from the estate

Under the Inheritance (Provision for Family and Dependants) Act 1975, a spouse has the right to challenge the estate if they believe the will doesn't adequately provide for them financially. The court will assess what's fair, with a primary focus on the spouse's maintenance needs.

Intestacy rules

If someone dies without a will (intestate), the surviving spouse's entitlements are defined by the rules of intestacy.

In England and Wales, if there are no children, the spouse inherits the entire estate. If there are children, the spouse receives all personal belongings, the first £270,000 of the estate, and half of the remaining estate, with the other half divided equally among the children.

Family home

If the home was jointly owned as joint tenants, it automatically passes to the surviving spouse, regardless of the will. However, if owned as tenants in common, the deceased's share doesn't automatically go to the surviving spouse and is subject to the will or intestacy rules.

Pension benefits

Surviving spouses often receive benefits from the deceased's pension scheme. These benefits can include a lump sum or a pension specifically for the surviving spouse, depending on the rules of the scheme.

Life insurance

If the deceased named their spouse as a beneficiary on a life insurance policy, the spouse would be entitled to receive the proceeds directly, outside of the will or intestacy rules.

Benefits

The surviving spouse may be eligible for certain benefits, such as Bereavement Support Payment, which can provide financial support shortly after the death of a spouse.

Protection from disinheritance

The law includes safeguards to prevent spouses from being completely disinherited. If a spouse feels that they haven't been fairly provided for in the will or under intestacy rules, they can claim reasonable financial provision from the estate.

Disinheriting a spouse and The Inheritance Act 1975


The Inheritance (Provision for Family and Dependants) Act 1975 grants certain individuals the right to contest an estate if they feel they haven't been fairly provided for. These individuals include:

  1. The spouse or civil partner of the deceased 

  2. A former spouse or civil partner who hasn’t remarried

  3. Someone who lived with the deceased as a spouse or civil partner for at least two years before their death 

  4. The deceased’s children

  5. Any person treated as a child of the family by the deceased 

  6. Anyone who was being supported, either wholly or partially, by the deceased before their death. 

When assessing such claims, the court considers various factors, including the financial needs and resources of the claimant, the needs of other beneficiaries, the deceased's responsibilities towards the claimant, the size of the estate, any disabilities of the claimant or beneficiaries, and other relevant circumstances.

What is classed as 'reasonable' financial provision?

For spouses and civil partners, reasonable financial provision is quite broad, including what would be considered reasonable for them to receive, beyond just basic maintenance. 

In determining reasonable provision the court considers: 

  • The financial needs and resources of the claimant (both present and future

  • The financial situations of other claimants and beneficiaries

  • The obligations and responsibilities the deceased had towards the claimant

  • The size and nature of the estate 

  • The claimant’s age and duration of their relationship with the deceased

  • Physical or mental disabilities of the claimant or beneficiaries 

  • The behaviour and actions of the claimant or beneficiaries before and after the deceased’s death.

  • Contributions made by the claimant to the deceased’s welfare. 

The court’s goal is to strike a balance between the wishes of the deceased as expressed in their will and the legitimate needs of the claimant. 

Can a will be contested if I disinherit my spouse?

If your spouse has been left out of your will, they have the option to challenge it. They can contest the will's validity by questioning aspects like testamentary capacity or undue influence. Alternatively, they can claim under the Inheritance Act 1975 for reasonable financial provision.

To pursue the latter route, they must demonstrate that the will doesn't sufficiently cater to their financial needs. If negotiations with beneficiaries and executors fail to resolve the matter, the court will intervene. This could involve granting the claimant a lump sum, specific assets, or ordering regular payments to meet their financial requirements.

What are the alternatives to disheriting my spouse?

If you’re considering disinheriting your spouse, you may want to consider alternatives first, such as: 

  • Setting up a trust that preserves assets for other beneficiaries like children from a previous marriage.

  • Leaving specific assets to your spouse that meet their needs. 

  • Getting a prenuptial or postnuptial agreement that outlines what your spouse will receive in the event of your death. 

  • Gifting assets like property during your lifetime. 

  • Changing the beneficiary of your life insurance policy and/or pension policy. 

A wills, trust, and probate solicitor can provide advice on any of the above, along with disinheriting your spouse, to help you ensure any estate planning you commit to is legally sound and likely to withstand potential challenges. 

How do I disinherit my spouse?

A solicitor can draft a new will reflecting your wishes if you want to disinherit your spouse. They may also advise you to include a statement of reasons in your will or a letter of wishes explaining your decision. While this is not a legal requirement, this can provide context to a court should the will be challenged by your spouse after your death. 

How much does it cost to remove someone from a will?

The cost of removing someone from a will can vary depending on whether you update your will or make a new will. While it is possible to use a codicil to change your will, this is usually reserved for minor changes.

Disinheriting a spouse from your will is a significant change and it is advisable to draft a completely new will to ensure your wishes are communicated. The cost of drafting a new will that disinherits your spouse can range from £150 to £500, depending on your needs and the fees charged by your chosen solicitor. 

While it’s possible to make changes to a will on your own, DIY amendments may lead to errors. In the case of disinheriting a spouse and the potential for legal challenges, it is advisable to find a solicitor to draft the will as per your instructions. 

Get support with Lawhive

If you're considering the option of disinheriting your spouse, our network of wills, trust, and probate lawyers is here to guide you through the process. They can provide expert advice on the implications of excluding a spouse from your will and explore alternative options if they are more suitable for your circumstances.

At Lawhive, we offer transparent pricing for the services of specialist lawyers on a fixed-fee basis. This means you'll know exactly how much it will cost to address your legal matter upfront, without any surprises. Additionally, our online platform makes it easy and convenient to access legal assistance from the comfort of your own home, ensuring a seamless experience.

Contact our Legal Assessment Team today for a free case evaluation and a fixed fee quote. We're here to help you navigate the complexities of estate planning and ensure your wishes are carried out effectively.

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