I am in a legal battle with my stepchildren – what can I do?

With ‘Silver Marriages’ – couples marrying later in life – increasing over the recent years it is no surprise that legal disputes are becoming more prevalent. One possible explanation could be that these older couples marrying later in life, sometimes on the advice of their tax specialists, already have established financial resources and families. As a consequence, there are sometimes [SS1.1]contrasting opinions about the finances and in particular inheritance.

So, what can you do if you are now a victim of a blended family fallout… well it does depend on what the dispute is regrading, whether it’s questions over capacity, inheritance, lasting powers of attorney (LPA) or general financial decisions – whatever the concern there are normally steps that can be taken that can protect you, whether they are simply practical or legal. 

How do disputes between stepchildren and new / surviving spouses occur?

Distinct from young newly weds who typically are looking to build their wealth together, silver marriage couples usually bring to their new relationship financial independence – whether that’s property, savings or pensions – as well as differing family responsibilities, for example children or grandchildren.

As a result, the arrangements can be a bit more complex and therefore disputes are more likely to arise. For example, if a new spouse survives their partner, they may expect to continue to live in the home they shared with their deceased spouse and inherit assets. But if the deceased partner had children, their expectations may differ significantly.  This may develop into claims of undue influence or challenges against the Will[SS2.1].

Disputes may also arise whilst both of you are still alive, including disagreements over financial decisions, gifts, changes to a Will, care arrangements or allegations of undue influence. Whilst these issues do not always result in legal proceedings, they can create significant family tension and may require practical or legal intervention.

What power do my stepchildren have over my and my partner’s finances?

On a general basis they should have no power to control either your separate or joint finances. These are decisions you make with your partner, ideally without anyone else’s inference. However, in practice differences may arise over inheritance expectations and there may be some form of influence on what assets are to be given on death and to whom. These concerns may be harmless in nature and maybe even reflect a genuine belief to protect their parent’s assets – but they can add pressure within silver marriages.

Issues may also arise where there are questions over mental capacity (where someone is unable to make informed decisions about their health or finances for example). In this case, if your stepchildren have been nominated by your partner as attorneys under a Lasting Power of Attorney (LPA), especially a property and finance LPA, then they would be entitled to make financial decisions on behalf of your partner. This may have an impact on property ownerships, changes to financial support or even gifts.

Simple practical steps including obtaining legal advice to understand the implications of any large financial decisions may help reduce the chances of fallouts or misunderstandings.

In addition, reviewing your nominated attorneys as you enter into a later-life marriage and ensuring they are people who not only will act in your best interests but can also work constructively together should help safeguard concerns over control of finances.

Can stepchildren cut off my money?

There are no automatic changes to your financial situation if your spouse unfortunately loses capacity, but if you are not nominated as their attorney there may be unexpected changes made to your current situation.

Attorneys are under strict legal obligations, the most paramount of which is to act in the best interests of the individual who has lost capacity. This could mean maintenance that you previously have enjoyed is cut to allow money to be used for care fees, for example.

It is crucial to carefully draft your LPA and where relevant to include instructions concerning maintenance for a partner. Including a corresponding Letter of Wishes [SS3.1]allows you to explain how you would like your finances to be managed if you were to lose capacity; this could include the preservation of financial support for your spouse. This helps provide clarity and hopefully prevent costly and emotionally draining applications to the Court of Protection when maintenance has stopped.

Can I challenge the decision of my stepchildren?

You can do, but it does depend on the circumstances. If there are no questions regarding capacity and you and your spouse are both still alive there is unlikely to be any formal legal recourse to any decisions they may be making. Exceptions to this may be where there is undue influence being put onto you or your spouse regarding the drafting of your Will; in cases of this nature, you should seek independent legal advice.

If your stepchildren are acting as an attorney under an LPA and you believe they are not acting in the best interests of your partner or ignoring your financial needs, an option is to report your concern to the Office of the Public Guardian, which in turn may lead to an application to the Court of Protection. In addition, if there is no Will in place or it is outdated due to changes in family structure following a silver marriage, it be necessary to make an application for a statutory Will (making a Will or making a change to a Will on behalf of someone who is not able to do so). Marriage revokes a Will and it is important to review your Wills and re-make them in anticipation of marriage or shortly after marriage.

However, if your stepchildren are the nominated representative under the terms of your late spouse’s Will they have legal obligations which govern how they should be acting. If you fear they are not meeting these requirements, then applications can be made to the court to challenge these and possibly remove them from power.

What can I do if there are legal battles about inheritance?

You would be surprised about how many families fall out following the death of a loved one. Sadly, as lawyers, we see this far too often.  

Disputes arise in cases where a surviving spouse or biological children in a blended family scenario may feel they have not adequately been provided for and/or there was outside influence which led to changes in the Will. These can be extremely emotional disputes and can be very difficult to navigate, so it is important to seek legal advice as early as possible in order to understand your rights.

There is the court route to help resolve disputes or to apply for provision if suitable provision has not been made for you. However, currently court proceedings are slow, expensive and can be stressful. Costs of such proceedings may also come out of the assets, diminishing financial resources as well as straining relations between families.

A Letter of Wishes put with the Will can help avoid misunderstanding, but if this has not been done it is also suggested legal advice or alternative dispute resolution methods, such as mediation, can help maintain relationships and keep costs low. 

How can members of blended families avoid disputes in silver marriages?

Open conversations, estate and financial planning, as well as transparency about future arrangements, can help avoid disputes. 

When entering into a silver-marriage you should ensure that you have made necessary updates to items such as your pension beneficiaries, Wills, LPAs, and any other financial instruments.

Where applicable, include a Letter of Wishes to assist in making it crystal clear as to what you want to happen in the future in the event that you are no longer able to make your own financial decisions, as well as taking independent financial and legal advice before merging finances with your new partner. 

Another option, growing in popularity in the UK, is Nuptial Agreements, whether it be Pre-nuptial (before marriage) or Post-Nuptial (after marriage) these agreements help people protect their finances and assets in the unfortunate event of a relationship breakdown. In turn this helps avoid costly and lengthy disputes between couples but also the wider family.  

Summary

Disputes between stepchildren and new or surviving spouses are becoming more common, particularly where there are established families and finances joining together under a silver marriage. Taking practical steps such as reviewing your Will, LPAs and obtaining legal advice can help reduce misunderstandings and avoid costly legal disputes. Where disagreements do arise, understanding your legal rights at an early stage can help protect your finances and future arrangements.

If you are looking for advice on any of the issues featured in this article, please contact Caroline Rushton, Partner and Head of Family Law Bromley, or Nima Stepney, Partner in our Private Client team on 020 8290 0440.

 

Disclaimer
This article is intended for general information purposes only and does not constitute legal or financial advice. The law may have changed since the date of publication, and the application of the law will depend on your individual circumstances.

You should seek independent legal and financial advice before taking, or refraining from taking, any action based on the content of this article.