Can a will protect my share if my husband remarries?

[NoLongerATeacher]

DH and I are in the process of updating our wills. We are both 60. Two adult children. Very straightforward in that we have mirror wills. However, DH is a lot healthier than me and both my parents died before 70. I expect therefore to go before him!

I would like it added to the wills that if I do go and he remarries then my bit of the estate on his remarriage would go to our boys and not new wife.

I know that if someone remarries all previous wills are defunct.

We are speaking to a solicitor next week but I’d like to have some idea if what I am asking for is possible or do I just rely on DH to make a new will after I’m gone to make sure the boys are covered.

We are in the UK and have been married for 40 years.

We both have a super relationship with our boys and I don’t think this would be a problem but I know of someone who did remarry then cut off all his family so you never know!

Is this doable? Thank you in advance for your advice.

I'm not a solicitor so can't advise apart from to say please don't rely on your husband doing the right thing in the future. It happens more than you think that a widower remarries and leaves everything to the new wife....
Talk to a solicitor about how you can achieve this e.g. having your house deeds showing you as "tenants in common" so you can specify who gets your half if you die first, i.e. leave it to your children, but allowing your husband to stay there until he dies/remarries etc.

You are right to think about this. I too know a family where a widower found a new companion in his old age. He had been lonely for a decade after losing his wife. And at the age of 89 he found a new partner. In the end it ended up with a fair split. But it was a fraught time.
Consider trusts. Or becoming tenants in common and leaving your half directly to your children.

Please get proper legal advice. I’m the child in your scenario and my dad’s wife of 3 years inherited everything when he died. I might be a beneficiary in her will but there’s no guarantee of it and I’m certainly not counting on it.

If you are joint tenants on your house then switch this to tenants in common. It's a simple form to complete and you don't need his agreement to do it. Then update your will to say you want your share of the house to go to the DC. It's up to you whether you want to set up a lifetime interest trust, to allow him to continue to live in the property until he, in turn, dies. The DC would then get your share when he dies.

A trust is a good idea as it also protects your share if your DH ever needs to go into care. Your share couldn't be used for the costs.

I would like it added to the wills that if I do go and he remarries then my bit of the estate on his remarriage would go to our boys and not new wife
That can't be done. Your will can only deal with the immediate distribution of your estate. Not future possibilities.
To fully safeguard your dc's inheritance, you can't bequeath it to your dh first. It would have to be specified in the will and be dealt with at the time.
The solicitor will give you all the possible options such as looking at how you and your dh are tenants on the the deeds of your house etc. But you can't bequeath your dh your assets temporarily.

You can give him a life interest, though, which amounts to much the same as leaving him the assets temporarily. Then the assets go to your sons after his death.

Well my mum and her husband had mirror wills. When she died last year he went to the solicitor 2 days later yes 2 days , she was still in the hospital morgue, to change his and disinherit us. Oh and claim mum never signed hers in the first place. We suspect he destroyed hers but have no proof unfortunately. So just be cautious because people can be unbelievably shitty when it comes to money.

Yes, you can in effect. You need to swap from joint tenants (where the house automatically will become in his sole ownership on your death) to tenants in common (where you each own your separate half and can leave it in your will). Then leave your half to your children, with a life interest trust to your husband. He can live there till he dies although your kids will own your half.

That would be in the form of a trust, one of the options the solicitor can discuss. Typically it would allow the beneficiary to receive the interest on capital or live in the house etc. He wouldn't have access to the capital itself.

You are absolutely right to prepare for this. There was a piece about it in the Sunday Times, which may be useful

The inheritance wars leaving loved ones with nothing

https://www.thetimes.com/article/b1f156f7-83da-43d8-8394-8791a5ae3a82?shareToken=f0833782b96a871d356061def5d9eaa6

Assuming your main asset is the house and you own it jointly with your husband, it is straightforward to guarantee that your share of the house goes to your children. If you own it as joint tenants, you need to sever the joint tenancy. You will then own 50% of the property. You leave your husband a life interest in your share of the property with it then passing to your children on his death. He will still be able to downsize or move elsewhere, but nothing he does can take away your children's inheritance.

If you have other significant assets, you need to discuss options with your solicitor.

"Is this doable? Thank you in advance for your advice."

Very much so.

However, the conditional bit here:

"that if I do go and he remarries then my bit of the estate on his remarriage would go to our boys and not new wife."

Won't really work.

In this situation you would need to leave your share of the property to your children and give your DH a lifetime interest so that he can carry on living there.

Most homes are owned by a couple as "joint tenants". This is where you both jointly own the whole house (just like a joint bank account). So, when one of you passes away the house automatically goes to the surviving spouse.

If you own the house as joint tenants then the house automatically passes to the surviving spouse regardless of what any will might say.

The other way to own a home is as "tenants in common". In this situation you each own a separate 50% of the home and you can leave your own 50% to whoever you like. In this situation it is usual for each spouse to leave their 50% to their children (but you can leave it to whoever you like).

It is a simple process to change from owning the home as joint tenants to tenants in common.

You would then leave your 50% share of the home in trust to your children and give your DH a lifetime interest to remain living there (they are also written so that he could move or downsize if he wanted).

The reason to put it in trust is to protect the surviving spouse from being turned out of the home.

There is nothing at all to stop you leaving your 50% directly to your children. Assuming that they're over the age of 18 then your share of the house passes directly to them in your will.

This means that they own 50% of the house and your surviving DH owns the other 50%.

They can then get a court order to force the sale of the house and turn your DH out. (or vice versa if you're the surviving spouse).

The trust stops this from happening. It says that the surviving spouse has the right to continue living in the house until his death (or other event mentioned in the will eg remarriage). This stops them being kicked out of the house by the children.

"...but I know of someone who did remarry then cut off all his family so you never know!"

Doing the above would protect against your 50% share of the home being given away.

The only issue with the lifetime interest suggested above is it effectively traps your husband in the house for the rest of his life, unless you have enough assets for him to buy somewhere new outright with his half.

This has been a problem for a family member of mine who is keen to move elsewhere following widowhood as the home is full of memories for her, and she would like to move closer to their children live in a different area of the country, and the house is far too big. However, if she left her current house she would only be entitled to half the value so cannot afford to move. This was an unintended consequence, she and her husband built their lift together over decades and it does seem unfair she is screwed like this. I would understand it more if she was a newer or second wife.

So if you take that route just be sure you and your husband fully understand the consequences for you both.

"The only issue with the lifetime interest suggested above is it effectively traps your husband in the house for the rest of his life, unless you have enough assets for him to buy somewhere new outright with his half."

I would disagree with you here.

In most cases, a properly written will, will allow the surviving spouse to move home and for the trustees of the trust to invest in the new property on the same basis.

"However, if she left her current house she would only be entitled to half the value so cannot afford to move. This was an unintended consequence,..."

This sounds as though it was a poorly written will. A typical will might include something like this:

The Property Trustees may at any time or times during the Trust Period as to the whole or any part of the Trust Fund in which the Life Tenant has for the time being an interest in possession:

pay out of any proceeds of sale of this property or any substituted property (purchased as a result of this sub-clause) to purchase a freehold or leasehold property which will be held for the benefit of the Life Tenant on the same trusts to which this clause refers.

In other words, the Trustees can choose to use all or some of the trust fund to purchase a share of a new home for the surviving spouse. They could agree to purchase 50% of the new home, or all of it, or none of it. Or, indeed, any other percentage.

It may be in this particular case that the will was poorly written and did not include such a clause, or it may be that the Trustees misunderstand the will or it may be that the Trustees simply do not wish to invest in a new home for the widow (you will notice the use of the word "may" - so they are allowed to do that but not required to do it) and so, in that case, if the Trustees decline to invest in a new home then, yes, the surviving widow just has her 50% to rely on.

So, just suppose that the widow does sell up and uses her 50% to buy a new home. What happens to the money left in trust?

In that case, the "remaindermen" (the people who inherit after the widow dies) don't get the money - they have to wait until the widow actually dies before they can get their hands on the money.

Until then, any income from the trust goes to the widow. I really would suggest that the Trustees speak to a qualified advisor if that is the case.

Any capital growth is retained by the Trust, but any income (such as interest or dividends) is paid to the surviving parent.

For example, if you put £100k in a savings account. According to Moneysavingexpert, the top rates at the moment are around 4.2%. So £100k in a savings account could earn £4,200 per year in interest and that must all be paid to the surviving spouse.

That's great for them but not so great for the children.

Alternatively you could invest in things that go for capital growth and don't provide any dividends at all. Great for the children, not so great for the surviving spouse.

However, the Trustees are required to take the interests of both parties into account (unless the will says otherwise - it might say that the interests of the surviving spouse may be solely taken into account) when deciding what to invest in.

This would normally be done by selecting a mix of investments, some of which concentrate on capital growth (good for the children) and some which concentrate on providing income (good for the surviving spouse).

I really would recommend that the Trustees speak to a qualified advisor about this.

Then, when the surviving spouse finally passes away, the assets of the Trust can then be passed out according to the will.

Thank you so much for all your replies. I certainly feel much more informed.

We are seeing the solicitor next week and I will put forward these points. My DH is happy to go with what I want. I really do trust him and it would be really really unlikely that he would shaft the boys.

I think the problem maybe inheritance tax - if my share of the house is in trust for the boys then IH maybe a problem. Our house is worth £2m. My DH also has SIPP funds of over £3m. Mine is £250k.

We have already put in place financial and health POA’s for each other.

I will update on what happens with the solicitor in case it helps someone else.

Thank you again.

The only issue here is that the kids may be liable for capital gains tax for the time period between you dying, and your husband dying, because your husband living there delays them from being able to sell the property.

I really do trust him and it would be really really unlikely that he would shaft the boys.
But what if you die first, he remarries and then dies before his new wife?
Your boys could then be reliant on their stepmother to do the right thing and ensure they got the share that you want them to have.
Any will he has would become void if he remarries, and he would need to get a new will sorted to leave what would have been your share of your joint estate to your boys.
Can you be sure he would do that, and not get talked out of it by a new wife?
Call me a cynic but money really can bring out the worst in people.....

"I think the problem maybe inheritance tax - if my share of the house is in trust for the boys then IH maybe a problem. Our house is worth £2m. My DH also has SIPP funds of over £3m. Mine is £250k."

With those sorts of figures you really do need to talk to a solicitor and/or other professional who is experienced in this area. As I'm sure you're aware, the rules on pensions change next year.

"if my share of the house is in trust for the boys then IH maybe a problem"

No, that won't be a problem. As long as the property (or any further property that is bought to replace it, if you/he move or downsize) is the surviving spouse's main home.

All of the property is then treated as though it belonged to the surviving spouse (even though half belongs to the trust) for inheritance tax purposes.

In this case, since your spouse will be the life tenant and the beneficiaries are your children, then you can also pass on all of the £500,000 IHT tax free allowance so that when he passes away then there will be £1 million of allowances.

At least, there would be for most people.

Since your joint estate would be worth more than £2.7 million then you will not qualify for the £350,000 of residential nil rate band (RNRB) allowance so both of you will only get £650,000 instead of £1 million.

The reason for this is that for estates worth above £2 million, for every £2 over that limit the RNRB is reduced by £1.

So a single person loses the entire £175,000 of RNRB if their estate is worth more than £2.35 million.

A married couple lose the entire £350,000 of RNRB if their estate is worth more than £2.7 million.

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With the upcoming changes to how pensions are treated I would really suggest that you do speak to somebody about this.

No it won't.

It gets complicated, but the property is basically treated as though the surviving spouse owned it during that period (in the same way that it does for inheritance tax purposes).

So, if it's the main residence of the surviving spouse until they die then there will be no CGT (unless CGT would have been due anyway). If there is also a holiday home or rental property as well then that will be subject to CGT.

If the surviving spouse moves out before death (eg into a care home) and the house is rented out etc during that period then, again, the relevant CGT rules kick in.

There is a special exemption for those going into care, their property is still treated as being their main home for 36 months after they move into permanent residential care.

So, if the home is sold within three years then there is no CGT to pay (unless there would have been anyway) then CGT is calculated from the time after the end of the 36 months.

Most of these trusts are set up to last until the death of the surviving spouse. But sometimes they are written to end on a specific event; this may be something like remarriage/cohabitation, reaching a certain age or going into care etc.

If the trust does end before the death of the surviving spouse, then the value of the trust is treated as a potentially exempt transfer (PET) for IHT purposes. And for CGT it will be treated as though the surviving spouse had owned the property during that time and it will depend on whether they occupied the property.

It can be done but leaving your 1/2 to kids and a lifetime interest for DH does leave him unable to to move and start a new life
I think trust can facilitate the house to be sold and the capital moved to a new one and your kids still own it but it’s very complex

Thank you yes we are def speaking to a solicitor next week.

The only caveat on this is how this has affected my neighbour - her daughter now owns 50% of the house and neighbour cannot afford to downsize or move into a bungalow because the DD wants her cold hard cash if her DM sells up. That won't leave neighbour with enough to buy anything on the open market round here.

She's essentially a prisoner now in her unsuitable home.

I so understand the DD perspective - she has young kids and a big mortgage, but it's a tough situation. She won't consider investing in another property with her DM.

There are two possible things that could have happened here. It all depends what the will actually said.

Either the house was owned as tenants in common and the deceased spouse left his half directly to the daughter.

In that case she could apply for an order for sale under TOLATA (Trusts of Land and Appointment of Trustees Act 1996).

Although it would cost her a little bit to bring the claim she would likely be able to get the property sold and get her hands on the money without having to wait.

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The other thing that may have happened is that the deceased spouse left his half in trust to his daughter with the mother as the life tenant.

In this situation, even if the house was sold, and the trustee/s declined to invest in a new home, then the daughter couldn't get her hands on the money until the mother passes away anyway. Until then, the money has to be invested.

I mentioned this in a post above. This is a repeat of what I said:

What happens to the money left in trust?

In that case, the people who inherit after the widow dies don't get the money - they have to wait until the widow actually dies before they can get their hands on the money.

Until then, any income from the trust goes to the widow.

Any capital growth is retained by the Trust, but any income (such as interest or dividends) is paid to the surviving parent.

For example, if you put £100k in a savings account. According to Moneysavingexpert, the top rates at the moment are around 4.2%. So £100k in a savings account could earn £4,200 per year in interest and that must all be paid to the surviving spouse.

That's great for them but not so great for the children.

Alternatively you could invest in things that go for capital growth and don't provide any dividends at all. Great for the children, not so great for the surviving spouse.

However, the Trustees are required to take the interests of both parties into account (unless the will says otherwise - it might say that the interests of the surviving spouse may be solely taken into account) when deciding what to invest in.

This would normally be done by selecting a mix of investments, some of which concentrate on capital growth (good for the children) and some which concentrate on providing income (good for the surviving spouse).

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So, depending on what the will actually said, the daughter can either get her money now or, if the will was written differently, then if the mother does downsize then the other 50% will have to be invested and the mother gets the income.

Def need a trust or similar - though my friend has lost both parents and has no inheritance yet as her dads 2nd wife has a life interest in the property and cash and my friend will only get it when 2nd wife dies. So nothing from her mum who died 20 years ago. V complicated

I know for a fact that this does happen because it happened to a relative recently. Mother died around 15 years before father, and father remained in the house until he died. When the house was sold there was a capital gains tax bill for the mother’s share of the house due to the increase in value over that 15 year period. It doesn’t matter whether the surviving spouse remains in the house or not.