Second marriages, adult children and surprise wills: what a spouse can do if they are left out of their partner’s will

By Ryan Taylor, Partner and Emily Thurgood, Solicitor, in our London Private Wealth Disputes team at Hugh James.

Most families assume a spouse will be “looked after” in a will. In our experience, the shock comes when that assumption is wrong. We often see this in second marriages, blended families, or where a will was written years earlier and never revisited.

We regularly speak to surviving husbands and wives who are grieving, trying to work out practical next steps, and are suddenly facing a very uncomfortable reality: perhaps the home is in the deceased’s sole name, or the estate is passing to adult children from a previous relationship, and there is little or nothing left for them. For the executors and beneficiaries, emotions run just as high. They may feel they are simply following the will, and that any challenge is “creating conflict”.

Individuals in England and Wales have freedom of testation, meaning you can leave your estate to whomever you choose. But that freedom is not absolute. The Inheritance (Provision for Family and Dependants) Act 1975 (the ‘Inheritance Act’) allows certain people, including spouses, to apply to the court for reasonable financial provision from an estate, where they have not been adequately provided for.

This is where early specialist advice matters. Handled well, these cases often settle. If dealt with reactively, they can become complex, expensive and damaging to family relationships.

The key point: spouses are treated differently under the Inheritance Act

A wide range of people can be eligible to apply under the Inheritance Act (including spouses/civil partners, some former spouses, children, dependants and cohabitees). The important distinction is that most claimants are limited to what they need for maintenance, whereas a spouse is not.

For a surviving spouse, the court can order what is “reasonable in all the circumstances of the case for a husband or wife to receive”, whether or not it is required for maintenance. That can open the door to a more substantial award than would be available to other categories of claimant.

In our experience, this is the point that is most often misunderstood by families administering estates. Adult children may assume the court will only “top up” basic living costs. In fact, the court’s discretion is broader for spouses, particularly where the spouse’s housing position is insecure.

The divorce cross-check: useful, but not the whole story

A common tool used to value spousal claims is what practitioners call the divorce cross-check. The Inheritance Act allows the court to consider what the surviving spouse might have received if the marriage had instead ended in divorce on the day of death.

This can be a helpful lens because it directs attention to factors such as:

• the length of the marriage
• the couple’s standard of living
• contributions made during the marriage

But it is not a strict formula. The court must also weigh the wider statutory factors, including the size of the estate, the spouse’s financial needs and resources, and the needs and resources of other beneficiaries.

What we find in practice is that cases turn less on “what does the statute say?” and more on the quality of evidence and the realism of proposed solutions, especially around housing.

What we regularly see when a spouse has been left out

While every case is fact-specific, there are recurring patterns.

Housing is often the pressure point. If the family home is in the deceased’s sole name, the will leaves it to children and the surviving spouse has limited resources, the dispute quickly becomes urgent. Even where the relationship between the spouse and stepchildren is good, uncertainty over whether the spouse can remain in the home can create immediate tension.

Delays and poor communication tend to escalate conflict. Most cases, if tackled strategically and with care, tend to settle; some even before the need to issue court proceedings. In our experience, early disclosure, clear evidence on needs and resources, and realistic settlement proposals usually give the best chance of resolving matters without a final hearing.

A practical illustration: when “nothing for the spouse” is unlikely to hold

Consider a scenario we see often in broad terms. A surviving spouse is in later life, has limited independent income, and has relied on the deceased for housing and day-to-day expenditure. The home is in the deceased’s sole name and forms a significant part of the estate. The will leaves the estate to adult children who are financially independent.

In those circumstances, the court is likely to look closely at whether the spouse has been left in a materially worse position than during the marriage. The spouse’s housing need, their age, and their ability to rehouse are all likely to carry significant weight. By contrast, where a marriage was short, the parties were financially separate, or the spouse is well resourced, the court may take a more limited view.

The point is not that outcomes are guaranteed, they are not, but that apparently “clear” wills can still produce outcomes that surprise families.

Case study

We have previously acted in a dispute involving a modest estate where the principal asset was the family home. The deceased had been married to his wife (our client) for over 20 years and had one adult child from a previous relationship. Under the terms of his will, the widow received a small legacy of less than £10,000.00 together with a life interest allowing her to occupy the matrimonial home, with the property ultimately passing to the son. Our client and her stepson had a very strained relationship, which was a key consideration in our advice and in determining the best outcome for all parties.

The widow considered that the will had failed to make reasonable financial provision for her and brought a claim under the Inheritance Act .

Our team advised on the strength of the claim and developed a strategy focused on demonstrating that the existing life interest did not adequately meet the widow’s financial needs or provide long-term security. We prepared detailed evidence addressing the statutory factors under the Inheritance Act and engaged constructively with the opposing party.

We were able to successfully secure a 50% beneficial interest in the family home for our client with a continued right to occupy for the remainder of her life, as well as getting her the residue of the estate (remaining assets) and a costs order made in her favour. The son was further required to share the insurance and repair costs for the property, limiting the expenses for our client’s occupation.

This provided her with greater financial security and a capital asset over a trust set up.  Even when the son appealed the initial award, we succeeded at the Court of Appeal in maintaining the award for our client, and getting a further costs order in her favour.

Why early advice protects both value and relationships

Spousal Inheritance Act claims are as much about people as they are about law. Families are grieving, beneficiaries are anxious about losing an inheritance, and executors are trying to administer an estate under scrutiny. That is why the timing and tone of legal intervention matters.

In our experience, early specialist advice can:

• help a surviving spouse understand what is realistically achievable (and what is not)
• support executors and beneficiaries to manage risk and avoid unnecessary escalation
• identify the evidence that will matter to the court, particularly around housing and standard of living
• explore settlement options early, including mediation, before positions harden
• keep costs proportionate and protect the estate’s value for all involved

There are also strict time limits for issuing a claim, which can place pressure on parties to act quickly. Taking advice early helps ensure that, where a claim is appropriate, it is presented properly and where it is not, that risk is addressed before avoidable costs accrue.

How we can help

Our London Private Wealth Disputes team advises on spouse claims under the Inheritance Act from both perspectives: we act for surviving spouses bringing claims and for executors and beneficiaries defending them. That dual viewpoint and experience helps us give clear, pragmatic advice and steer matters towards workable outcomes.