As we enter the autumn wedding season it seems a good opportunity to revisit the question of what marriage means for your succession planning and your Will.
Most couples, of course, do not immediately think to book in a visit to their lawyers on touching down at Heathrow with a tropical honeymoon tan, a lengthy list of thank you letters to tackle and a great reluctance to come “back to reality”; however they would be advised not to leave it too long.
Here are some of the implications of your recent marriage which you may not have been aware of:
- Marriage invalidates an existing Will. If you had a Will in place before you married then it automatically became void on your wedding day (unless made “in contemplation of marriage”) and you will now be intestate. This is a good opportunity to sit down with your spouse and discuss your Wills as you may now wish to make them in mirror terms depending on your circumstances. In any case book an appointment with your lawyer as soon as possible to ensure that you put appropriate arrangements in place.
- If you are British nationals and you married outside the UK you should check whether your marriage is deemed valid in the UK. The basic rule is that if you followed the correct process in the country in which you got married and your marriage would have been allowed under English law then it will be recognised in the UK. If you are planning a wedding outside UK, check with the local authorities in that jurisdiction to find out what you need to do and what documents you will need to present, particularly if you are planning a non-traditional ceremony. That cliff-top scene in Antigua may have made for some wonderful photos but if you are not recognised as a married couple in UK you risk being ineligible for all the inheritance tax and pension benefits available to married couples in this country. A large and avoidable inheritance tax bill could follow.
- If your spouse is not a British national or was born overseas then they may not be domiciled in the UK for inheritance tax purposes. Domicile is a notoriously tricky area of law but you will need to be aware of this possibility as it can have a significant impact on your estate planning. The basic rule is that if both spouses are UK domiciled then on the first death any property that passes between them will not attract an inheritance tax charge. This is deferred to be collected on the second death. However if one spouse is not domiciled in the UK the spouse exemption is reduced to 325K, which has to include all gifts to your spouse over a lifetime as well as any inheritance on your death (and yes buying a house in joint names funded by one spouse only does count as a gift). Everything over and above this is charged at 40% in the usual way. If you think you and your spouse may fall into this category then you should seek advice at once from our specialists in this area.
- A divorce does not invalidate a Will; however the Will would be read as though your former spouse had died before you. Therefore any legacies or residuary gifts to the former spouse will fail, and an appointment of the spouse as an executor will not take effect. You should at least check that you have default provisions in place to ensure that the Will still works as you wish, or better still, make a new one.
- Annulments are not common these days but we do see them on occasion. There are two grounds for seeking an annulment: the first is that the marriage was void from the outset ie that it should never have taken place; the second is that it is voidable. The grounds which are granted have an impact on your Will. If the first grounds are sought and granted then any Will that you had prior to marriage which was invalidated by that marriage, will revive (unless you made a Will subsequent to the marriage in which case that subsequent Will remains valid). If the second grounds are sought and granted then any prior Will will not revive. It is essential that you know which grounds are being sought and how it affects your personal circumstances.
- Finally, and sadly, the Courts are seeing an increasing number of cases where elderly people are preyed upon by unscrupulous fraudsters and convinced into marriage in their later years. In many cases the elderly person suffers from a cognitive impairment such as dementia rendering them particularly vulnerable. The elderly person does not remake their Will, and the new spouse then benefits from a substantial windfall on their death. The Courts and social services are alive to this issue but, given the relatively low standard of capacity required to marry (as opposed to, say making a Will or Power of Attorney) there are not enough adequate safeguards in place at present to prevent these predatory marriages from taking place.
If you would like further advice on any of the issues listed above then please contact:
on 01223 447495 or click here
to email.Carolyn Bagley
on 01908 247015 or click here
to email.Francesca Rossi
on 020 7400 5037 or click here
on 01604 463101 or click here
To download our information booklet on Wills please click here