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Thomas
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Category: UK Law
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Experience:  BA (Hons), PgDip, Practising Solicitor
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May I, as a married spouse, make a waiver so that, in the event

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May I, as a married spouse, make a waiver so that, in the event of my wife predeceasing me, I can completely and utterly exclude myself from receiving or being able to claim any of her estate after her death, thus allowing her to give her her entire estate to her children? Or will I always have some way to claim a portion of her estate after her death? I need my wife to be absolutely certain that everything she has at the time of her death goes to her children. Thank you.
Submitted: 2 years ago.
Category: UK Law
Expert:  Thomas replied 2 years ago.
Hi

Thanks for your patience.

Your wife can exclude you by executing a Will with a solicitor obviously. I presume that (if this is what you both want) then she has done this leaving to the children.
I think you are then referring to you potentially making a claim against the Will despite what it says.
In the event of someone passing away and not providing for someone else in their Will then a person who is not provided for may be able to make a claim against the estate under the Inheritance (Provision for Family and Dependent) Act 1976. You must make the application within 6 months of the date of the grant of probate, so it’s really a case of your position at the time.

In order to make a claim against the estate the person claiming must be able to prove that they were financially dependent to some extent on the deceased.

You can’t really waive your future and contingent rights in this regard. However your rights in this respect depend on your proving financial dependency. You can therefore execute a statutory declaration (ie. a sworn statement) confirming that you do not consider yourself financially dependent upon here and are therefore not eligible or actually inclined to make a claim under the legislation should the worst happen and she pass away.

This would be the best you could do at the moment.

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Kind regards,


Tom
Customer: replied 2 years ago.

I am not sure this deals with my question. I have a flat and other bits and pieces, together with my pension all of with with which I can live perfectly well and independently. We are currently living apart and I manage my own affairs and she manages hers. We remain in contact and see each other with the children and grandchildren from time to time.


 


She wants to proceed with a divorce on grounds of separation without any accusations against me. I would like us to stay married, albeit living separately.


 


Her reason for wanting the divorce to be complete is to ensure that in the event that she dies before me, I will have no claim whatsoever on any part of her estate, as she wants to be absolutely certain that everything she leaves behind will go to her children and that I will never be in a position to claim any of it under any circumstances.


 


What I am asking is whether there is any way I can act, by way of for example a waiver or other declaration, while we remain married to give her the absolute guarantee she needs that I will never have right of claim to any of her estate after her death.


 


I'm sorry if my original question was not clear and look forward to your answer.


 


Regards


 


Mr C


 


 

Expert:  Thomas replied 2 years ago.
Hi Mr C,

OK.

She can get a divorce from you even if you are not willing to acknowledge any divorce papesr served on you. She can just get a process server to serve them on you and then the divorce can proceed.

I would say that if you do not want to divorce but she wants some financial security then you should see a solicitor about coming to a financial settlement in respect of the matrimonial assets.

If you are able to agree a financial settlement which you are both happy with then you should have these documented in a Separation Agreement drawn up by a solicitor. This would be a detailed agreement concerning and dealing with each party's claim on your respective matrimonial assets. This would mean that when you do divorce then it would not be likely that either party would be able to claim further against the other's assets. You would both have to get independent legal advice to ensure that you are both fully aware of what the implications are and that is is much, much less likely to be challenged.

At the same time you shoudl execute the statory declaration as above described.

This would achieve the result that you want.

Please remember to rate my answer.

Kind regards,

Tom
Customer: replied 2 years ago.

Dear XXXXX


 


We are not getting to the root of the problem here. I want to remain married. If she cannot be absolutely guaranteed that I will simply not be able to inherit anything, then she will opt for divorce, which once through, excludes me from any inheritance in any event.


 


In simple terms, is there anything I can do to give her such a guarantee so that she and her kids don't see me as a threat in the event that she pre-deceases me while we remain married.


 


Essentially I need a 'yes' or 'no' answer. If yes, I will seek to find it, if no, I will have to let her have her divorce and be done with it.


 


Thank you


 


Kind regards


 


Mr C


 


 

Expert:  Thomas replied 2 years ago.
Hi Mr C,

If you need an answer in absolutes, then the best thing for her to financial guarantee her children's inheritance from her then she should divorce you.

Once divorced with a financial order from the court then she can be assured her children will inherit.

All other options leave a degree of uncertainty (although not a particulaly high one if you followed the above) that may mean you would be able to complicate her leaving her children her inheritance.

That is it, in a nutshall.

Please rate my answer.

Tom
Thomas, Lawyer
Category: UK Law
Satisfied Customers: 6522
Experience: BA (Hons), PgDip, Practising Solicitor
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