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Both my spouse and I have children from previous relationships. How do we ensure there are no disputes over our estate after we die?

Unfortunately, blended family disputes over wills and estates are on the increase. This is a result of more relationships dissolving (due to separation, divorce or the death of a partner) and many people moving on to new relationships – often forming a blended family in the process, of which there are several types:

  • A couple, each of whom have one or more children from a previous relationship – but no natural or adopted children together; or
  • A couple where one partner has one or more children from a previous relationship – and at least one other natural or adopted child together.

There has also been an increase in grandparent-led families, and the emergence of families parented by lesbian, gay, bisexual, transgender or intersex couples.

Ways for testators to avoid disputes is to restructure their financial affairs, sort out ownership of assets and discuss with blended family members what they can expect from their estate.

Traditionally, a couple have made wills that gives each person’s interest in the family home and other assets – to each other. Upon the death of the surviving partner, the combined estates of both families are split between all children. However, there is a risk that after one partner dies the surviving partner changes his or her will to benefit only their children. This can be prevented with a “mutual wills agreement” that cannot be altered.

Alternatively, the will of the deceased spouse can establish a trust over the assets. This puts in place mechanisms for protecting children of a previous relationship whilst providing for the needs of the current spouse – such as an ongoing income.

Chantelle Moore
Solicitor
Wills & Estates | Family Law | Commercial Law
cmoore@scammell.com.au

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