Protecting Children From a Previous Relationship in Your Will

A life interest trust, often created as an immediate post-death interest trust within a will, allows a named beneficiary, typically a surviving spouse or partner, to receive income from trust assets or to live in a property for their lifetime (or until remarriage or another trigger event), without owning the capital outright. On the death of that life tenant, the capital passes to the ultimate beneficiaries you named, usually your children, rather than becoming part of your partner's own estate for them to leave elsewhere.

This is the classic tool for blended families, because it genuinely balances both goals: your partner is protected and can continue living in the family home, and your children are guaranteed to inherit eventually rather than relying on your partner's goodwill. It does, however, require ongoing trustee administration during your partner's lifetime, needs careful drafting of what happens if the property is sold or your partner needs to move into care, and has its own inheritance tax and capital gains tax implications that a solicitor needs to work through with you.

If you own your home as joint tenants with your partner, the right of survivorship means that on your death your share passes automatically to your surviving partner, regardless of what your will says, because your share never actually becomes part of your estate. This makes a life interest trust for your share of the house impossible to achieve while you remain joint tenants, because there is no separate share for your will to deal with.

The usual first step is to sever the joint tenancy, converting the ownership to a tenancy in common, where each of you owns a defined, separate share (commonly but not necessarily equal) that can be left by will independently of the other. This is a straightforward legal step in itself and is covered in our guide on joint tenants and tenants in common, but it needs to be done deliberately and with the trust structure in mind, ideally with a solicitor coordinating both the severance and the will.

Mutual wills are a pair of wills, usually made by partners, that include an agreement not to change the wills after one partner has died, so that the survivor cannot alter the plan once they have already benefited from the first partner's estate. In principle, this stops exactly the sideways disinheritance problem described elsewhere in this series, because the surviving partner is legally bound to the agreed outcome.

In practice, mutual wills are used relatively rarely, and for good reason: they are inflexible for decades into the future, can create serious complications if the survivor's circumstances change significantly, such as needing to sell a protected asset for care costs, and disputes about whether a true mutual wills agreement was actually made are a common and difficult area of contested probate. A life interest trust is often a more flexible and more commonly used way to achieve a similar protective goal. If mutual wills are being considered, this absolutely needs a solicitor, both to draft them correctly and to make sure both partners fully understand what they are giving up.

Even with careful planning, it is worth understanding that the Inheritance (Provision for Family and Dependants) Act 1975 allows certain categories of people, including spouses, children, and others who were financially dependent on the deceased, to apply to court for reasonable financial provision if they believe a will (or intestacy) does not provide adequately for them. Good planning reduces the risk of a successful claim by showing that you turned your mind properly to everyone's needs, but it cannot remove the possibility of a claim being brought entirely.

This is another reason to take advice rather than rely on guesswork: a solicitor can help you structure provision, and record your reasoning, in a way that is more likely to withstand a challenge if one is ever made.

None of the arrangements in this guide, life interest trusts, joint tenancy severance combined with a trust, or mutual wills, are suitable for a simple online will template. If any of this reflects what you are trying to achieve, please speak to a solicitor rather than attempting to draft it yourself or leaving it to a basic will.

If, having read this, you decide your situation is actually simpler than it first seemed, for example you are happy with straightforward named gifts rather than a trust, our other guides on children from a previous relationship and second marriages explain when an online will remains appropriate.