What is sideways disinheritance?

When we think about estate planning, the goal is often to ensure that our assets and cherished belongings are passed on to our loved ones in a way that supports their futures. However, a lesser-known but equally important concept is sideways disinheritance, which can unexpectedly prevent your descendants from inheriting what you intend to leave for them. In this blog, we’ll explore what sideways disinheritance is, how it happens, and strategies to prevent it from affecting your estate.

What is Sideways Disinheritance?

Sideways disinheritance occurs when an heir, typically a child, is unintentionally disinherited due to family changes—most commonly remarriage after the death or divorce of one parent. In such situations, the assets that were meant to pass down to the children from the first marriage could end up in the hands of a new spouse or their children, leaving the original beneficiaries (the first spouse’s children) with little or nothing.

How Sideways Disinheritance Happen

Let’s break down how this can happen using a common scenario:

- First Marriage: Imagine a couple, John and Sarah, who have children together. They both intend for their assets to be passed to their children after their deaths.

- Remarriage: If Sarah dies first, John might remarry, forming a new family structure. He might blend his assets with his new spouse, unintentionally compromising the children’s inheritance from his first marriage.

- Unintentional Disinheritance: If John passes away and has not specifically ensured that his original estate plan remains intact (perhaps by not having trusts or other protections in place), his new spouse may inherit the bulk of his estate. Upon her death, those assets may then pass to her own children (from a previous relationship or a new one) rather than to John and Sarah's children.

This sequence leaves the children from the first marriage either disinherited or receiving much less than intended. Hence the term "sideways disinheritance"—assets that were supposed to pass down to children can "sideways" pass to another family or heirs through remarriage.

Common Causes of Sideways Disinheritance

1. Remarriage and Blended Families: As discussed, when one spouse remarries and does not update their estate plan, assets might be unintentionally left to a new spouse or stepchildren.

2. Joint Tenancy Property* Assets held in joint tenancy with a new spouse (like real estate or joint bank accounts) automatically transfer to the surviving spouse upon death, bypassing the terms of a will.

3. Lack of a Proper Will or Trus: If a will isn't updated or no trust is in place to protect the original beneficiaries, children from the first marriage may be unintentionally disinherited.

4. Intestacy Laws: If a person dies without a will, the state’s intestacy laws determine who inherits the assets. These laws generally prioritize surviving spouses, which could inadvertently disinherit children from previous marriages.

How to Prevent Sideways Disinheritance

Estate planning plays a crucial role in protecting your children and ensuring that your assets are passed down according to your wishes. Here are several ways to prevent sideways disinheritance:1. **Use Trusts**

One of the best ways to protect your children's inheritance is to create a **trust**. A **life interest trust** can ensure that your surviving spouse has access to assets during their lifetime, but those assets will ultimately go to your children after both parents have passed.

Another option is a discretionary trust, which gives trustees control over how and when assets are distributed to ensure the intended beneficiaries receive the inheritance.

2. Prenuptial or Postnuptial Agreement

These agreements can be used in remarriage situations to specify which assets will remain with the children from a previous marriage. They legally protect the inheritance that you wish to leave for your children, preventing it from being passed to a new spouse or stepchildren.

3.Write or Update Your Will Regularly

A clear, up-to-date will is essential in any estate plan. When circumstances change, such as a new marriage or the birth of new children, update your will to reflect your current wishes. Without a will, intestacy laws can lead to sideways disinheritance by default.

4. Consider a Property Agreement

If you are married or remarrying, a property agreement (such as **tenants-in-common** rather than joint tenancy for real estate) ensures that your share of the property passes to your children rather than automatically to your spouse.

5. Naming Beneficiary

For assets like life insurance policies, pensions, or retirement accounts, naming your children as **direct beneficiaries** ensures they receive these funds directly, bypassing probate and potential sideways disinheritance.

Conclusion: The Importance of Comprehensive Estate Planning

Sideways disinheritance is an often-overlooked risk in estate planning, particularly for those with blended families or remarriages. However, with careful planning—using tools like trusts, updated wills, and prenuptial agreements—you can ensure that your loved ones inherit what you intend for them.

To protect your legacy across generations, consult with an estate planning attorney. They can help you navigate family dynamics and legal complexities to ensure that your children and heirs are protected from sideways disinheritance, safeguarding your family's future wealth.

With the right plan in place, you can pass down your assets and values without the risk of unintended disinheritance.