Separated, wondering about STBXH’s will and DS

[Rtmhwales]

My DH and I are separated, we have one infant son. He is British and I am not. I reside in a different country so have no clue how the system works in the UK. He’s just written to me to say he wants to include DS in his will for inheritance.

My first question is until we legally divorce what happens with inheritance? Can he make a will that bypasses a spouse’s interest in his estate? I have zero interest in it, and it was a short marriage before separation (only 5 months) but I don’t know legally what would happen if he was to pass away before the divorce is finalized.

My second question is what happens if he does pass away and leaves his estate to a minor child? Is it held in trust until his DS is eighteen? Is it administered by another neutral third party? Or is this something I’d need to see the actual will to get an answer (and understandably he wouldn’t show me)?

I’m dreading the idea about him passing away and having to interact with my ex in laws about my DS’s potential inheritance if he was still a minor as we don’t get on, and our DS is only two months old.

Thanks for any advice.

Some quick answers, others may give more detail

Can he make a will that bypasses a spouse’s interest in his estate? - yes, that is the point of a will, to leave money to whoever you wish

Is it held in trust until his DS is eighteen? Yes, the child cannot inherit until they are 18. He could specify a higher age in his will, 18 is quite young to inherit.

Is it administered by another neutral third party? the trust has to have trustees - these can be solicitors, family, friends. It would seem logical that your DH would make his parents trustees, but equally he could name the solicitors (although this costs!).

Do you think that he would consider naming you as a trustee along with someone else eg a solicitor, so you would have some say in how the trust is administered?

I suggest you reply to him saying that you are glad that DS is to be named in his will. Depending on your relationship, you could also say that you understand that the money would be in trust and would he be open to discussing who the trustees may be and whether you would have some input into how the tust was administered?

I am a single parent and my will is set up that all of my assets and life insurance goes to a trust administered by a solicitor. Whoever is guardian to my son will have a regular payment until he is 18, plus will be able to claim any expenses. He will get an amount paid out to him at 18, and be able to claim any education expenses, plus a regular monthly payment, then another lump sum at 25, then the remainder of the trust at 30. It's quite a significant amount, so I don't want him getting it all at 18 and then possibly spending it unwisely, I'd rather him have some maturity before getting that sort of money. I know it's no guarantee, but at least there is a chance.

Also on the life insurance point a lot of spouses insure the person they are divorcing's life until the divorce is finalised and they get their share of the family assets (if there are any such assets) to protect themselves for that interim period.

Also on the life insurance point a lot of spouses insure the person they are divorcing's life until the divorce is finalised

I have never come across this in 26 years of practice. It is always possible for a spouse (say, the wife) to insure the life of the other (say, the husband) to protect the wife until divorce and after.

Also on the life insurance point a lot of spouses insure the person they are divorcing's life until the divorce is finalised

I have never come across this in 26 years of practice. It is always possible for a spouse (say, the wife) to insure the life of the other (say, the husband) to protect the wife until divorce and after.

Double post fail.

Yes you can certainly insure the life of anyone, even your neighbour. I just thought divorce lawyers recommended making sure there was insurance as soon as you started the divorce process. Someone might die before decree absolute and have left £100m to his mistress and £1m to his wife and the wife might instead have got £50m had the divorce already gone through, that was my only point.

Yes you can certainly insure the life of anyone, even your neighbour.

In fact you absolutely can’t. You have to have what is known as an insurance interest. But you sounded authoritative.

No divorce lawyer I know would recommend a client insures their own life to cover their STBX whilst negotiating a settlement.

Insurable interest.

Xenia, I am really shocked that you would say you can insure the life of anyone, even a neighbour! That's completely untrue.

Collaborate is correct as usual but you can certainly insure your Ex if he is the father of mutual children (aka they are yours and his).

I thought you had to make provision for your dependents, ie spouse and children under 18/in formal education?

i thought if you had an interest in that person you could take life insurance out and that people did so eg if your ex husband is paying you maintenance it surely makes sense to have a life insurance policy against them dying. If I said you could insure absolutely anyone random eg the life of the Duke of Edinburgh when you have no connection I certainly did not mean that kind of thing. I just meant in the divorce context.

It is also very common for people in business to take out life policies on others who aren't family members - Key Man insurance etc.

See, I thought a spouse’s interest in an estate couldn’t be bypassed? I’m not a solicitor but a friend died whilst separated and a court overrode his will that left his estate to his parents, in favour of awarding the estate to his STBXW.

Exactly, somerville - that’s what I thought too.

S, if the person was still the spouse (so not yet divorced) then if they are written out of a will there is a right to claim under the 1975 inheritance act so presume it would be on that basis and that is probably why people in the middle of divorcing are advised to think about the life insurance position.