Protecting assets in a second marriage
The need to protect assets in a second marriage is a common concern for couples. This can particularly be the case for later life remarriages. Mature couples entering a second marriage are likely to have a range of existing assets, whether property, savings & investments or even a family business. It is important for couples to consider how to protect assets and how they would wish to distribute their assets in the event of death or a subsequent divorce.
Update Will
When you remarry, your existing Will becomes invalid. So, a first step is to draw up a new Will to ensure that it reflects your new situation and your wishes as to how you would wish your estate to be distributed. Your new relationship could result in a ‘blended’ family situation and each party may have existing property and assets to consider. Careful estate planning is essential to deal with the complexity of the situation.
Trusts
Trusts can be used in a variety of ways. For the purposes of a second marriage, Trusts can be used to pass assets on death. This could cover property, money and investments and even pensions or life assurance. The Trust will set out the assets to be included, the Trustees who will manage the Trust, and the Beneficiaries.
Prenuptial agreements (Prenups)
It may be worth making a prenuptial agreement before a second marriage. Although prenuptial agreements are not legally binding in the UK, they are increasingly being considered by the Courts. A prenup sets out how assets will be distributed in the event of divorce. It can be used to ring fence assets for children from a previous marriage.
Declaration of Trust
A Declaration of Trust is a legally binding document that sets out the ownership arrangements of a property. It records the proportion that each person owns and sets out how any income or future sale proceeds will be distributed. A marrying couple can establish a Declaration of Trust on the marital home to set out the relevant share that each will own.
A second marriage does not change the terms of an existing Declaration of Trust. However, the couple enter a legally binding contract under the Matrimonial Causes Act 1973 and this can have the effect of superseding the terms of the Declaration of Trust. Family Courts have the power to redistribute assets in the interest of fairness, in the event of a subsequent divorce.
In the case of an investment property, or a secondary asset, then the courts are more likely to uphold the original terms of a Declaration of Trust.
Joint tenants or Tenants in Common?
If you own a property as joint tenants, then your share will automatically pass to your spouse on your death. As a joint tenant you cannot leave your share of the property to anyone else.
If you wish your share to go to your children, or a sibling, for example, then you would need to be Tenants in Common. Couples entering a second marriage, often with blended families, may wish to change the property title to Tenants in Common. This would mean each party has a distinct share of the property that they can gift according to their wishes. This can be a sensible option where there are children from a previous relationship, and you wish to protect their inheritance.
Ensuring financial security in a second marriage is an important consideration. Legal advice on Estate Planning, setting up Trusts and how to best protect your assets is essential.
If you require specialist legal advice, contact us today.