My husband has left me out of his will

What can I do if my husband has left me out of his Will?

A common question our team get asked is, “My husband has left me out of his Will, is there anything I can do?” Similar questions are also posed by husbands who have been left out of their wife’s Will.

The answer is that Wills can be challenged and in particular a surviving spouse can bring a claim for financial provision under the Inheritance (Provision for Family and Dependants) Act 1975.

Even if you have not been left out of the Will altogether, a claim can still be made if the provision made for you is not sufficient.

It has been emphasised by the courts that a husband or wife should not be prejudiced by marriage ending in death rather than divorce. So, what can you expect to receive as a husband or wife on the death of your spouse?

Many couples make Wills together during their lifetime and it is commonplace for their Wills to leave a life interest in the matrimonial home to the other, with it then passing to the children. Put simply, this means the survivor has the right to live in the house during their lifetime and when they die, the house passes to the children. There are various benefits in Wills being drafted on this basis.

But what happens if you need money? A life interest in the house may address your housing need, but does not help you with your cost of living.

When the courts look at claims made by a husband or wife under the Inheritance Act, they apply the ‘divorce cross-check’. That is, what would the division of the assets be if the marriage ended in divorce rather than death? On divorce, the courts are less likely to award life interest provision as they prefer to order a clean break. Arguably therefore, the courts under the 1975 Act should be encouraged not to award a life interest, so you could bring a claim to receive a capital sum in addition to a housing award.

Where a couple has separated and begun dividing their assets, that will be taken into account by the court when looking at what award should be made under the Inheritance Act.

The takeaway point from court decisions on inheritance claims brought by a husband or wife is that the courts deal with these. claims generously. Courts will look at the husband or wife’s reasonable needs based upon their standard of living during the marriage. The multi-million pound inheritance claim by Heather McCartney highlights just how generously the courts interpret a spouse’s ‘need’.

These claims are unique in so far as they combine family and probate law. It is therefore crucial you seek advice from a contentious probate solicitor who practices in this niche area of law.

My husband has left me out of his will