The effects of previous relationships, and your intention to leave an inheritance for children from these relationships, whilst also making provision for a new partner can mean that you have difficult decisions to make about how to balance these different interests. However, there are also other issues which you may not have considered and some potential opportunities to be aware of.
If you have children from a previous relationship:
- How do you want to divide your assets on your death between your children and your new partner?
- Are then any children from your new relationship, or does your partner also have any children from a previous relationship who you would also wish to provide for?
- If you want to “leave everything” to your children, would you want to secure your partner’s right to continue living in your home after your death?
- If you want to leave everything to your partner on the understanding that they will leave provision in their Will to your children, do you trust that they will not subsequently change their mind after your death? Is there a risk that they might subsequently change their Will to prefer their children over yours? It is unfortunately sometimes human nature that after your death your partner’s priorities might change, or that your children and step-children might get on less well than at present.
- What about inheritances from your partner. Would you wish to keep them for your family on your death, or share them with their family?
- Having considered all of that, if you decide to leave very little or nothing to one or other group, then this could leave your estate exposed to the risk of a legal claim for provision from that group.
An opportunity can arise in relation to protecting your property against having to be used to fund your new partner’s future care home costs if, on your death, you do not leave your property outright to your partner. Quite often, where property is purchased by a couple, it will be purchased together and therefore only your share could be protected in this way from your partner’s future care costs. However, if you have brought property into the relationship which you owned from before then in your sole name, then you can protect the whole value in this way so long as you do not gift part or all of it to your partner either during your lifetime or in your Will.
There are means to ensure that you can leave provision to your new partner, whilst protecting your children’s rights and preventing these assets being at risk of being taken into account in funding your partner’s possible future care costs.
Furthermore, if you are in the financial position where inheritance tax could be an issue then, if your previous marriage ended on the death of your spouse, you may be able to use their unused inheritance tax allowances which could result in a substantial inheritance tax saving on your death. However, this will not be available if your previous marriage ended on divorce. You can pass your entire estate free of inheritance tax to a new spouse or registered civil partner, but if you have not remarried your new partner then any gift to them would be subject to inheritance tax in the same way as any gift to your children.
It is also important to remember that whilst a previous spouses’ death, or divorce from them, will not invalidate a prior Will containing a gift to them, the gift to that deceased or divorced spouse will no longer take effect. However, if you remarry then any Will in existence prior to your new marriage will automatically be revoked by your subsequent marriage and will have no effect, unless it included specific wording to express that it was made in contemplation of that marriage. Therefore, if you remarry, unless you made a Will in contemplation of that marriage, it is essential that you consider making a new Will.
Due to the issues to consider, it is particularly important to take legal advice when making a Will or planning your affairs in these circumstances to ensure that you understand your options so you can make informed decisions.
We are pleased to advise you in relation to all of these issues. We are on hand to help with any queries you may have in regards to Wills and Probate issues. Our wills and probate solicitors are based in Wakefield, Dewsbury, and Horsforth. Feel free to call us on 0330 300 1103 or request a call back.