Who should inherit? How to split joint assets in your will when you and your partner disagree

What to do if you and your partner disagree on who to leave your assets to in your will; for example, if one of you has children from a previous marriage. By Claire Mason

If raising a family is a minefield of emotion, leaving one is no different. I’m not speaking about the fall-out of a divorce or separation (though that could indirectly contribute to the topic at hand); I’m speaking about who gets the family silver in the will if circumstances have changed.

‘Family’ is a term that today can mean a number of different kin combinations. This is positive, as families who have strong bonds that don’t reflect the traditional nuclear family combination (which hasn’t actually always been the ‘norm’ through the ages or in different societies) are treated with the respect they deserve.

However, families of all shapes and sizes face a challenge in the bequeathing of assets and heirlooms, especially if the deceased was in a different relationship to the one in which children, or heirs, were born.

Different countries have different rules regarding bequeathing, and there is a whole area of law that deals with testate and intestate estates. However, generally speaking, there isn’t a prescription as to which heirs your items or money should be left to, even if a nuclear family unit is still intact.

Whose kids should inherit the house?

Clarissa and Steve are currently experiencing the complexity of deciding on inheritance. There is a 19-year age gap in their relationship, and Steve has three adult children from his first marriage.

They’ve been together for nine years and are shortly purchasing their first house together. Steve is providing the money for the deposit, and Clarissa is raising, and will be paying for, the mortgage.

While both of them have savings and investments, the house will be by far the largest asset either of them owns. Part of the paperwork has included drawing up wills, and therein lies the, if not exactly problem, certainly the issue.

“Steve initially assumed that as I don’t have children, it was a foregone conclusion that his children would inherit the house. I have a pleasant relationship with them, but I disagree that my share of the property automatically has to go to them.

“I don’t feel that, just because I don’t have children, I don’t have heirs,” Clarissa says.

For Steve’s part, he feels that to not leave the house to his children would be incredibly hurtful to them, and would cause a lot of emotional pain that he didn’t intend.

How to decide on your bequest

In this regard, he is right to consider the consequences, says Amanda Falkson of Psychotherapy City: “Exclusion from a will can have considerable and far-reaching ramifications with the excluded person questioning what they did wrong, which, of course, may be nothing at all.

“It can be a prolonged and painful experience, especially with no one to shed any light on why they’ve been excluded.

“With blended and extended families the norm, and some of the old inheritance rules having less relevance, it’s important that estate planning is considered as broadly as possible before committing pen to paper and that all possible avenues are aired.

“Don’t make your decisions in a vacuum. Discuss your thinking with friends, others whose opinion you value, and a lawyer who specialises in wills.

“Then, be as open as you can with your beneficiaries about why you are including or excluding them. A tricky conversation maybe, but one worth having as you could be saving your beneficiaries from all kinds of soul-searching after you’ve gone,” she says.

Each partner’s financial contribution

Of course, in Clarissa and Steve’s case, there is an argument to be made that each should be a beneficiary of the other’s too, over and above Steve’s children or any other heirs. Each partner’s financial contribution is important and needs to be considered.

As they’re not married, they will each have separate wills, and legally they’re allowed to leave their assets to whomever they want.

Only if Steve’s children were under 18 would the law get involved to dictate that his share of the property has to go to the minor(s). However, as all three children are in their twenties, the law does not have any particular interest in who is earmarked to get what.

A difficult conversation – but a necessary one

Clarissa says: “It’s an ongoing conversation as to how we’re going to deal with who we leave the house to, but we’re making progress by being honest with each other as to our own feelings on the issue.

“Once we have a firmer idea of how to proceed, we will discuss matters with Steve’s kids so that we’re playing open cards all round.”

As the definition of family morphs and adapts to the times, so too will the inheritance rules, even if they’re not on the statute books, of who gets the family silver.

Until that time, open communication, with all parties who have a vested interest, seems the best way to mitigate any unforeseen emotional fall-out, and take care of everyone’s interests.