In a second marriage, a standard will can put your children's inheritance at risk. A liferent trust gives your spouse a home for life, without letting them decide who inherits the capital.
The problem
Say you and your second spouse both have children from earlier relationships. Most couples write mirror wills, each leaving everything to the other. When you die, your spouse owns the house and savings outright. They can leave them to their own children, or to a new partner, and yours receive nothing. Nothing legally stops them changing their will, even if you agreed otherwise.
Stepchildren have no legal rights over a stepparent's estate. And even your own children's legal rights stop at moveable estate, so they don't reach the house.
How a liferent trust works
Your will leaves the home, or the whole estate, in trust. Your spouse has the liferent, meaning the right to live in the home or receive the income for life. The capital belongs to the fiar, who is named in your will, usually your children. When the liferent ends, on your spouse's death or on remarriage if your will says so, the capital passes to the fiar.
Your spouse never owns the trust assets outright, so they cannot redirect them to their own children or a new partner. Trustees look after the property.
What it can and can't do
It protects the capital for your children and still provides for your spouse. It doesn't give your spouse as much freedom as outright ownership. They can't sell the house on their own, and they can't use the capital as they please. That is the point, but it is also the cost.
It also doesn't remove legal rights. Your spouse still has legal rights over your moveable estate, and so do your children. Where a lot of your wealth is cash and investments, those claims can reduce what the trust holds. Our guide to legal rights sets out the shares.
The tax position depends on how the trust is set up, so it belongs in the drafting conversation, not afterwards.
Drafting questions
The will needs to say who the trustees are and what happens if your spouse wants to move. It should say whether the liferent ends on remarriage or cohabitation, and who pays for repairs and insurance. Who is the fiar if one of your children has died? These are the details that cause arguments later.
Choose trustees who can work together. Your spouse can be one, but an independent trustee helps, because your spouse's interests and your children's can pull in different directions.
Other options
You can split the estate between your spouse and children from the start. That gives everyone something now but may leave your spouse short of money. Joint ownership with a survivorship clause does the opposite of what you want here, because the house passes to the survivor outright.
The 2024 Act changes some of the rules on trustees and who can be removed. Our guide to the Trusts and Succession (Scotland) Act 2024 covers them. If care fees are part of your worry, read whether a trust protects a home from care fees first.
Richard arranges wills and trusts through our specialist legal partners. Start with our Trusts page.