If you created a new Will after your marriage, you may already know that a new marriage revokes any previous Will that you created. But did you know that the same rules don’t apply to divorce? If you have recently divorced, you may be wondering how this affects your Will.
There are many ways to alter your Will after divorce to protect your assets and beneficiaries. However, you may worry about what may happen to your assets if your child is going through a divorce. Marriage may not be forever, and there could be a risk of your child’s partner divorcing them after they receive their inheritance.
Divorce and Inheritance
If you are divorcing, your Will is not automatically revoked when you get married. Instead, your ex-partner may be treated as though they had passed away when your marriage was dissolved for inheritance purposes. However, if you have not specified what should happen to your assets in the event of your partner’s death, the rules of intestacy may apply to your estate.
The rules of intestacy dictate how your estate will be divided up, which may mean that your assets go to some people you intentionally left out of your Will. Therefore, it is good practice to create an entirely new Will after your divorce.
If you don’t make a new Will after your divorce, your loved ones may not be provided for after your death. Even in the case of an amicable divorce, there is no legal guarantee that your assets will be distributed to your loved ones unless you create a new Will.
Children and Divorce
As a parent, you will want to do everything possible to protect the inheritance that you will leave your child. However, it can be a worry if your child’s partner is not trustworthy or their relationship is rocky. Parents are often concerned about how much of their legacy their children’s spouses may be entitled to in the case of a divorce.
If you are concerned about the person your child is marrying, you may suggest a prenuptial agreement. This agreement allows both parties to ring-fence certain assets that they want to keep solely as their own in the case of divorce. Your child may consider this if:
- There is a wealth gap between the two parties
- One party has a business to protect
- One party has a substantial inheritance to protect
However, a prenuptial agreement may not be suitable for your child, or they may already be married without one. In addition to this, there is no law enshrined in an Act of Parliament that makes prenuptial agreements legally binding. They can be contested in law and must follow strict rules to be binding. Despite this, there are still many ways to protect their inheritance from their spouse.
Loan Agreements
A loan agreement can help to protect contributions to your children’s finances. A loan agreement sets out that any monetary gifts are a loan, and an agreement can be drawn up setting out the amount loaned and what repayments are expected. This can be useful if you would like to contribute to your child’s finances now, for instance, putting down a deposit on a home for them.
However, loan agreements do not protect your children’s inheritance after you pass away. You may not wish to give gifts like this and need an alternative way to ring-fence your child’s inheritance.
Skipping a Generation
To protect your child’s inheritance from their partner, you may choose to skip over them in your Will and leave your assets to your grandchildren instead. However, this can cause many problems, and your children may not be financially taken care of. These assets are not divorce-proof from your grandchildren, either, and skipping a generation is often an unsatisfactory solution for many.
Family Trust Wills
A Family Trust Will can ring-fence your assets and protect them from your child’s spouse in the case of divorce. This Will can also be drawn up to help provide for your spouse and later generations for up to 125 years.
With a Family Trust Will, you place your assets into a trust and assign trustees to care for them. Trustees safeguard your assets but you will retain full use of them during your lifetime. Your trustees can distribute capital to your beneficiaries as they see fit, so you must choose people that you can trust to be a trustee.
Assets held in trust structures are protected in the case of divorce and are not classed as matrimonial assets that will be split during the divorce. The trust’s beneficiaries do not own these assets on paper, and will be exempt from the divorce court’s decision making.
Approximately 40% of marriages end in divorce. Many parents are highly concerned when leaving assets for their married children – no matter how much they may like their son- or daughter-in-law or how happy their child’s marriage is, there is no concrete guarantee that they will stay together forever.
Trusts must be established and planned carefully to be effective for your children. Legal advice is essential, as without it, the trust may not be effective in protecting your children’s inheritance. The Planning Bee can help with all aspects of trust planning and can advise on how best to protect your children’s inheritance in the case of divorce.
Conclusion
Nobody begins a relationship with the expectation of getting divorced. However, divorce is an unfortunate part of life, and many couples will divorce throughout their life. There are many ways to protect your Will from divorce, whether you are getting divorced or your children are.
Investing in a Family Trust Will can help to ring-fence your assets to allow your child to benefit from them and protect them from their partner in the case of a divorce.
Contact The Planning Bee today to learn more about how our expert paralegals can help you. We can establish trusts and create new Wills that will protect you and your children from the consequences of divorce.