How complex family structures are causing a rise in Contentious Probate Disputes

There has been a significant increase in contentious probate claims and disputes in recent years. This can largely be attributed to changes in family structures, and the increase of ‘blended’ families and remarriages.

According to a study carried out by STEP (the Society of Trust and Estates Practitioners), 73% of lawyers and wealth managers have seen an increase in ‘blended’ families seeking estate planning advice. Following on from this, the increase in alternative and complex family arrangements has given rise to more inheritance and wills disputes. 

In this article, we will consider the common issues that can arise from cohabitation, remarriage and stepchildren within blended families, which often results in a Contentious Probate claim. 

Cohabitees or unmarried partners

More couples are choosing to not marry, despite cohabiting or having children. Census reported an 8.6% decrease in marriages in 2023. With marriage becoming less commonplace, this can create issues if your wishes are not expressly set out in a will. Without a will, you are said to have died ‘intestate’. This means that your estate will be distributed as per the intestacy rules. 

The intestacy rules only recognise marriages and civil partnerships. Unmarried or cohabiting partners therefore have no automatic right to inherit. With unmarried couples, the surviving partner would not inherit any assets held in the sole name of the Deceased, and the estate would instead go to the Deceased’s children or parents instead (or the next surviving relative). It is therefore imperative that couples who are not married ensure their wishes are formally recognised in a Will.

In the event of a partner or cohabitee dying intestate, their surviving partner could potentially have a claim under the Inheritance (Provision for Family and Dependants) Act 1975. This allows for any person living with the deceased two years immediately before their death ‘as if that person and the deceased were a married couple’ to make an application for reasonable financial provision from the estate. We recommend taking early action to commence a claim and seeking legal advice as soon as possible. 

Second marriages

Issues and disputes can arise in cases of second marriages or remarriages. This is because many do not realise that marriage revokes any previous Wills. Therefore, in these cases, it is highly advisable to make or plan for a Will to be signed after the marriage, or in contemplation of marriage. This is to ensure that provisions in your Will are accurate for your current familial circumstances. 

Equally, divorcing a previous partner does not void or nullify previous Wills. Instead, any wills made before the final divorce order, will treat their former spouse or partner to have died before them (unless this is specified clearly in the Will), meaning any gifts would fail. If a testator wishes to change their will after a divorce, it is often considered better to create a completely new will, rather than a codicil. This ensures that the testator’s intentions are clear and put into effect. 

Stepchildren/ blended families 

Finally, another important factor to consider is the impact of stepchildren and their legal definition within an estate. Children from previous marriages or relationships leads to more complexity. 

Stepchildren are not considered as the testator’s legal issue, or children, for the purposes of the intestacy rules, or a Will. The exception being when a testator has legally adopted a stepchild. If a testator refers to “all my children” within their Will, this will not automatically include stepchildren. It is important, therefore, where stepchildren are concerned, to refer specifically to the names of any parties you wish to inherit from your estate. 

The increase in second marriages means that without a Will in place, the second or new spouse would be entitled to all or most of their surviving partner’s estate, depending on the value, which can leave very little, or nothing, for children from previous marriages.  

It is advisable for individuals with complex or alternative family arrangements to create a Will that reflects this, to prevent litigation and disputes taking place. It is often the case that this isn't done, and as a result, claims against estates are on the rise. 

How can we help?

If you find yourself in need of legal advice following the death of a loved one, and believe you may have a claim against their estate, our experts will be able to advise and guide you through the process. 

Get in touch with our specialist contentious probate solicitors today. Contact our team by telephone on 0116 247 2000, complete our contact form, or send us an email via info@smithpartnership.co.uk. 

We also have offices across the East Midlands and Staffordshire with contentious probate solicitors, in Burton, Derby, Stoke-On-Trent and Swadlincote.