After Remarriage – Who Gets What?
What most people want.
Most frequently parents want their children to inherit their property and other assets when they die. The most common type of Will tends to leave everything to the surviving spouse and then to their children.
However, after remarriage you may not consider how that might affect any inheritance you have in mind for your children. Typically people still think that one way or another their property and assets will go to their children. That may be turn out to be wrong ! This problem is called “Sideways Disinheritance”.
Look at this situation.
Andy & Betty divorce. The money and assets are then split equally as part of the divorce process so that they each have £300,000. They have grown up children.
Betty then marries Colin and subsequently they buy a house together. Betty puts in £250,000 to match Colin’s contribution. As a married couple they buy in the normal way, as joint tenants.
Of her remaining £50,000, Betty put £30,000 into a joint savings account with Colin. The remainder is put into sole bank and saving accounts in Betty’s name.
If Betty died before her new husband Colin, with or without a Will the maximum that Betty’s 3 children could inherit is £20,000. This is because the jointly owned house and savings account (with a combined value of £330,000) is already owned by Colin.
That money and that share in the house does not and will not part of any inheritance.
What can prevent this happening?
First, sever the joint tenancy form of house ownership , to become tenants-in-common. Then as tenants-in-common each owns a share of the property – normally 50% but it can be in any proportions.
Will a surviving spouse be made to leave the marital home?
No and this is easy enough to deal with. Both husband and wife should set up a life interest trust in their Wills. This gives the surviving spouse the right to use the house (or it’s value) until s/he dies and then the half share in the Life Interest Trust passes to the children. It serves protects the interests of the surviving spouse and the children in a balanced way.
What about money or other assets?
Any assets held in a single name or any share of assets held as tenants-in-common can pass directly to the children or could be put into the Life Interest Trust. The interest accrued on such assets held in Trust would be paid to surviving spouse until his/her death when the money would be distributed to the children
Does it have to be arranged until the surviving spouse dies?
The way the Trust is set up can be varied. In fact a lesser version of a Life Interest Trust is called ‘Rights of Residence’ and can be set up until remarriage or for a few years or a particular event.
Can it be that easy?
In principle it is that straightforward. The trust itself has some legal complexity and does not fall into the range of DIY Wills (or at least it shouldn’t do) but for a suitably qualified lawyer it is fairly straightforward matter.
So, by understanding this potentially trap and acting on it a solution can be found quite easily so anyone can do the right thing for their new spouse and their children.
Bill Ryan LLB (Hons)
Lawscape
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