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Impact of second marriage upon Inheritance for children : How to secure your wishes. Prenup and Wills

According to the Marriage Foundation, around one in three second marriages ends in divorce? Invariably there are children from the first marriage who then have concerns as to the impact the second divorce will have upon their own interests in their parents estate particularly when they have children of their own.

Even more importantly, there may well be issues in meeting potential care home costs in old age if that becomes necessary and assets have already been split on Divorce leaving the now adult children potentially discharging or substantially contributing to the same. What strategies can be put in place to protect assets of this nature.

Second time lucky: Older people remarrying is driving interest in pre-nuptial agreements. Having already been through the Divorce mill first time round those who marry again are more alert and realistic to the prospect of relationships coming to an end and a need to protect or ring fence assets for themselves or their children. Second time around most couples tend to be more open to the suggestion of entering into discussions as to what would happen in the event of their relationship coming to an end. Unless wishes are made clear on these sorts of issues, it is more likely that assets on death would automatically default to a new spouse and their children if any rather than the children of the first marriage. If a new family home is being bought it is imperative specialist advice is sort as to how this property is held failing which parties may think they have made a will to protect the interests of their older family without knowing the way their new home is held provides for a right of survivorship for their new spouse.

One way to address these concerns is through a pre-nuptial agreement. A pre-nup is an agreement a couple enter into before they get married and is designed to organise what the couple would like to happen to the assets they’re bringing into the marriage if the marriage ends in divorce. Admittedly, it’s not easy for couples to talk about such things ahead of marriage. No-one really wants to consider what will happen in the event of a break-up. But it should not be seen as unromantic or a taboo subject. It is a practical and sensible arrangement to make, like making a will, insuring your home, taking out a life insurance policy or putting money aside for your funeral arrangements.

Invariably parents entering into a new marriage are shocked to learn that on remarriage either his/ her own children – or grandchildren – may not be able to inherit the assets they worked so hard to build up. When embarking on a second marriage, it might be that the new spouse has children too, so drawing up a pre-nup is in both parties interests. I would recommend mediation or collaborative law as a means of agreeing terms of a prenup. This will mean both parties sitting round a table in a relaxed way to discuss all kinds of future plans, not just financial but all aspects of their marriage. This can actually be a really helpful thing to do, and lots of couples feel it’s a useful form of pre-marital counselling, similar to that which a priest might give to church-going couples. Currently pre-nups aren’t legally binding in the UK. They are a factor which a court does however take into consideration and increasingly more and more case law is being made supportive of prenuptial agreements. With the right legal advice following the correct procedures the more weight will be given to it. However Even were there is a pre-nup, parties might find that if they got divorced a judge wouldn’t necessarily stick to its terms. There can be lots of reasons for this, but an example might be if in the future one party became disabled and needed a lot more care, then her need for the money would be deemed more pressing than those of her husband’s grandchildren, no matter what the pre-nup says.

A worrying number of couples are drawing up pre-nups days or even hours before the big day, but that’s not good legally, or for the stress levels of the bride and groom. Pre-nups also have more chance of being binding if they are signed ideally at least 21 days before a wedding and with appropriate principles being adhered to.

We would also recommend a will. However unless the will is drawn in anticipation of the marriage the will will be null and void. Timing is essential unless of course you complete the will after the wedding. For more information please contact one of our experts.

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