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Legal protection for unmarried SAHMs

(261 Posts)
lilyaldrin Sun 01-Dec-13 22:03:56

Basically, what do I need to do to confer the same financial/legal protection as marriage would?

We have joint children and although we don't currently own property together, we hope to in the next few years.

First thing I'm tackling is wills leaving everything to each other. What next?

WaitingForPeterWimsey Fri 06-Dec-13 14:00:06

Sorry that was meant to be a shock not an wink

passedgo Fri 06-Dec-13 14:17:18

But Waiting that can happen anyway because if you put that in your Will it over-rides the marriage default position.

Eg my parents are married and are splitting all their cash between GCs and DB and me equally. hmm

friday16 Fri 06-Dec-13 17:21:05

But Waiting that can happen anyway because if you put that in your Will it over-rides the marriage default position.

Not quite. You could leave your assets in trust for your children, with provision to use the money for their benefit in the meantime, but with the residue firmly assigned to them.

I asked my solicitor about doing this the last time I re-drew my will, and his response was that it would set will-writing back a hundred years, and it was such trusts that kept litigation partners in foreign holidays. I decided in the end to trust the beneficiaries of my will to do the right thing.

The risk is that you leave your assets to your spouse, who remarries, dies leaving everything to their spouse, and the spouse (your children's step-parent) cuts your children out of their will. If I were remarrying as a widow/er I would definitely make a will leaving my late spouse's assets in trust to my children, and I believe that is standard practice. But to make a will in my first marriage that prevents my spouse from having free access to them were I to die, on the off-chance that they remarry and are badly advised about their will in their second marriage? It does seem rather untrusting of them.

But then I think that people who rely on intestacy rules need their heads examining. Anyone with children and assets who does not have a professionally written will is being negligent, I think.

passedgo Fri 06-Dec-13 18:50:30

So marriage only enhances your dcs security if you and your husband were to die intestate and die at the same time. If one dies first, the other then re-marries, your dc's step-parent can do what they want with your money and bypass your children.

This is absurd more complicated than I thought.

friday16 Fri 06-Dec-13 19:35:08

If one dies first, the other then re-marries, your dc's step-parent can do what they want with your money and bypass your children.

Not necessarily.

If you die intestate, your widow/er receives the first 250k plus a lifetime interest in the rest. In that sense, intestacy may more favourable to children than simple mirror wills.

But (and proper solicitors can advise your particular circumstances, that's what you pay them for) the advice I received was that trusts, whether created through intestacy or in your will, sound better than they are, and unless you have reason to believe that your partner will behave unreasonably, you are better off leaving it to their discretion.

I can't help thinking that a lot of these discussions are of more interest if your problem is the division of your family farm or your manor house, not the effects of the typical UK citizen. To lose both your parents, with an intervening re-marriage, in the midst of which the second parent to die has had their head turned by a golddigger such that they do not write an effective will, all of which happens while you are young, would be very unusual. Having assets tied up in trust for your children while you yourself eke out a destitute old age (cf. the raising of the pension age again) seem in general terms a bad idea.

passedgo Sat 07-Dec-13 10:20:25

I agree that Trusts are generally a waste of time and tend to be recommended by accountants rather than solicitors as they theoretically bypass inheritance tax.

So the general rule is that spouse gets 250k of your estate (excluding your own potential inheritance, which continues down the bloodline) and the rest goes to children, held in trust for them until 18? That sounds fair to me unless of course you were married to Charles Saatchi.

friday16 Sat 07-Dec-13 11:09:21

So the general rule is that spouse gets 250k of your estate

It's not a "general rule". It's intestacy. Dying in intestacy is not, in general terms, a good way to protect your children's interests. Aside from anything else, you might be very unhappy at who ends up with the letters of administration, is appointed guardian, and acts as trustees.

If you like the look of its provisions, make a will with the same terms, but appoint the above.

held in trust for them until 18

Sounds great, yes? Of course, if your son turns out to have special needs, or your daughter is a potential Olympic sportsman, the money might be quite handy when they're fourteen. Tough, eh?

EvilRingahBitch Sat 07-Dec-13 11:37:45

Intestacy is also much more administratively difficult. It's a shitty thing to inflict on a bereaved partner.

And in the unlikely event that you and your spouse both die in the same event, eg a car or plane crash, your estate has to go through two lots of probate before going on to the ultimate recipient (before the recent reform, this would mean paying unneccessary IHT as well, but now that's not a factor for married couples). A simple survivorship clause will fix that.

passedgo Sat 07-Dec-13 18:51:08

I'm getting a headache now. So marriage doesn't really cover probate effectively - no advantage unless intestate which is a bad idea even if married.

And if property is in both names there should be a protection if separation occurs but if push came to shove even an unmarried main carer could apply to court to stay in the home until children are 18?

So as long as Wills are drawn up to cover everything, all we unmarrieds lose out on is some sideways tax allowance-shifting and widow's pension and maintenance on separation?

riksti Sat 07-Dec-13 18:55:28

passedgo And inheritance tax reliefs if the estate of the deceased partner is more than his/her available nil rate band, which means you'll be paying inheritance tax unnecessarily.

Chunderella Sat 07-Dec-13 19:23:05

Yes an unmarried main carer could apply to remain in the home until the children are 18. It is a potentially complex and expensive process, which may or may not succeed.

If you want total control over what happens to your assets after you die, with no possibility of challenge from anyone you don't want to benefit, but the flexibility to allow whoever looks after DC to make positive decisions on their behalf and yet not do anything you wouldn't want with the money (don't we all) then no, marriage isn't going to do that for you. Nor is unmarried cohabitation. You just pays your money, either to the registry office or a solicitor, and takes your choice. If there are no immigration issues and your partner is unlikely to be tried for many criminal offences, it comes down to the finances. And once widows pension goes, if there's no likelihood of a spousal maintenance situation or IHT, perhaps marriage won't offer much that you can't get from a good will and NOK. You just have to do your research and use your sense. Obviously this situation benefits some people and screws over others, but it is as it is.

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