Couples in a second (or subsequent) relationship with children from previous relationships, often have Wills that leave everything to each other. They agree that when the second partner dies, they will leave half their assets to the children of the first partner to die.
However, when one partner dies, it is very common for the other partner to eventually change their Will to exclude the other’s children. It is only natural that you want your estate to benefit your own children, who support you in your later years. The survivor rarely has a close continuing relationship with their step-children after their partner dies. It is very common for people to form new relationships after a partner dies – often surprisingly quickly.
You might take the “don’t worry about it” approach and expect your partner not to exclude your children from their Will, after you die. In reality, you are making the choice that: “My children should not expect to receive anything if I die first”. Your partner will inevitably change their Will after you die, as they move on and their life circumstances change. The more time that passes after the first dies, the more certain it becomes that the survivor will change their Will.
Even if the surviving partner does not change their Will, there is every possibility they will end up in another relationship. That may make it impossible for them to honour any agreement not to change their Will. Remarriage would void the current Will. A new de facto partner could challenge their Will, even if they honour the agreement not to change their Will.
You could enter into a contract with each other not to change your Wills after the other dies. However, there are significant difficulties with this. If the survivor nevertheless changes their Will, the new Will is valid. Your children would have the right to sue the estate of your partner, if they do change their Will. That requires expensive litigation. The disappointed beneficiaries may not be able to afford to pursue litigation. Lawyers may end up with more of your estate than your beneficiaries.
A testamentary trust can be used to preserve interests of children of the first to die.
This may be the only option that can work without unacceptable side-effects. They are however by their nature complex and as a result easy to get very wrong and usually relatively expensive if done well.
A simple, less than perfect but acceptable practical solution, is often available.
However it is critical that this be well thought out and suit your circumstances. Great care is required to balance the needs and interests of each partner and their respective children. Skilled guidance is essential – you don’t know what can go wrong because you don’t know what you don’t know. Estates law is complicated and often counter-intuitive.
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