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.

@Another2Cats if I've understood it correctly it's the first - but if the DD were to bring a TOLATA action, would that not render her DM homeless with insufficient cash to buy a new home?

Just one word of warning about lifetime trusts. My mum left her half of the estate to me and my sister and my dad as a beneficiary and trustee. As it was a discretionary trust as Trustee Dad decided to apply all the income and capital to himself and essentially closed the trust. All perfectly legal but obvs not what my mum intended and not for one moment what we thought that he would be capable of doing 🤷‍♀️

It does indeed matter whether the surviving spouse remains in the house. If mother put her half of the property in a life interest trust and gave father the legal right to occupy (she didn't just give him permission or leave it to the discretion of the trustees), and it was his only or main residence, the trustees should have claimed Principal Private Residence Relief when the property was sold, meaning that no Capital Gains Tax was payable. Either the trustees did not claim PPR Relief resulting in an unnecessary tax bill, or the conditions allowing it to be claimed were not met.

If it had been a life interest trust giving him the right to occupy the property with you and your sisters inheriting on his death, he could not have taken the capital legally.

Tenants in common, leave your half to your children. My Mum was adamant this was what she wanted in her will, she wasn’t having my Dad remarrying and some other woman getting her house😂

In the event, my Dad died first and I now own half my Mum’s house.

As you will pay IT on your estate it may be good for you to gift your boys money now out of excess income and in regular amounts. It would reduce amount going IT.

Do not leave your half directly to your children unless you are willing to risk them forcing your spouse out of the house in order to get their hands on the money. A life interest trust ensures your spouse can continue living in the house with it passing to your children when they die.

I hear what you are saying - as I said we have a super relationship with our boys - we have already bought them houses and we gift them money regularly. We have investments for our granddaugher also. I very much doubt they’d kick their dad out - they don’t need to.
I just want to protect my half from Brenda down the road getting her hands on it ( that’s what we’ve now called this fictitious woman that may come along) 😂

You nee to own your property as 'Tenants in common', this would mean that you each own half of the property and you can leave your half to your children in a will when you pass. There can be a clause that your husband can live in it for the rest of his life and when the property is sold your half passes to your children, You will need a solicitor to change ownership to tenants in common.

When I did my will I was advised that this is called sideways disinheritance. You can have a will drawn up to avoid this, it’s considerably more expensive but can be done. You need to speak to a proper legal advisor really.

But if a lifetime interest allows the remaining spouse to stay in the home and they decide to downsize, what happens to the excess money made on downsizing and also if they downsize to a much smaller property , do the kids only get a half share in this property when the remaining spouse eventually dies?

If you have a read of the thread then you will see that I have answered your exact questions.

See, for example, my post yesterday at 20:59 pm.

But to briefly answer your questions:

"...what happens to the excess money made on downsizing"

This must be invested and the surviving spouse gets any income (eg interest or dividends) but any capital growth remains within the trust for the benefit of the children.

"and also if they downsize to a much smaller property , do the kids only get a half share in this property when the remaining spouse eventually dies?"

No, they get the share of the house plus the other money not used to pay for the share of the new house that has been invested.

We did exactly what you’re asking for via a multi-trust will (mirrored). The purpose was to protect assets for the ultimate beneficiary (our child) so could not be passed to someone else if either person remarries or in case either of us blew it all on care home fees etc.
Given the size of our estate we also put in another trust to make sure it was the most tax efficient too (something about not losing nil rate bands).

"I very much doubt they’d kick their dad out - they don’t need to."

That's great that this is your situation.

However, in these circumstances you do then need to think about capital gains tax (CGT).

If your share of the home is left in trust to your children with your DH as the life tenant then there will be no CGT to pay on his death (unless there would be CGT payable in any event - eg if you had not lived in the home for a period of time - rented it out etc).

In contrast, if you leave your share of the home directly to your children, without it being put in trust, then, unless they are actually living there (which you have implied they are not), they will be liable to CGT on any uplift in the value of the home between the death of the first parent and the death of the second parent.

So, if only to avoid your children having to pay CGT, then it would be worthwhile putting your share of the home in trust rather than giving it directly to your children.

Thank you @Another2Cats

You should go in to speak to the solicitor alone. Probably a life interest trust or discretionary trust will be best, make your children the executors, not your husband.

Hi,

I had the same concerns and we applied to the land registry to have a tenants in common agreement. My husband own’s 50% and I do. Our respective 50% have been left to our children. So if I die my 50% goes to my children. They can’t evict him or force him to sell, but if he dies or moves the 50% belongs to them and vice versa.

Confidently stated but inaccurate.
I have significant assets which through my will are left to my husband but in trust for my DD. This means no inheritance tax needs to be paid. If iI die first and relatively young my DH will start gifting the cash assets to DD in the hope that he lives further 7 years after which the gifts will be considered tax free. The trust arrangements ensure that if DH does not honour this agreement that the assets will still be passed to DD.

We were in a not dissimilar situation, but also facing a surgery for DH with a 1 in 100 mortality rate. Our solicitor advised that he should consider reducing his assets. Fortunately he survived and we have active pans to reduce the assets.

@NoLongerATeacher We have a similar situation to you. We have done exactly as @prh47bridge says. I do think your big issue is IHT though. We have a similar issue and it’s difficult to know what to do but we are giving a lot to DDs. We are older than you and time flies! You need to understand about allowances for IHT and how you can reduce liability on your estates.

Thank you everyone - I am financially aware and DH is in no way controlling so is happy for me to state what I want. Interestingly he doesn’t feel the need to protect share. All our accounts are joint and I know where all our money is - I have online access to his SIPP account as well.

I feel now though I have a pretty comprehensive understanding of what I need to discuss with the solicitor.

You can do it sort if temporarily - via a trust or life interest, but it needs proper legal advice.

Very sensible, OP. Hope the meeting with the lawyer goes well.

@NoLongerATeacher This is also a problem for you.

"All our accounts are joint"

In that situation everything in those accounts automatically goes to the surviving spouse, regardless of what any will might say.

"Interestingly he doesn’t feel the need to protect share."

I would guess that this is likely because he could not imagine you with somebody else if he were to die first. He may not have also considered how he would feel as a widower and he is attracted to another woman.

Although you and your DH are clearly very close, what would happen if he were to pass away first and you then later became enamoured of a younger guy (let's call him a 'gigolo')?

While I'm sure that you would never neglect your own children, you might choose to leave a large amount of the estate to your young gigolo on your death.

Likewise, if you were to pass away first then your DH may remarry and leave a large part of the estate to his new wife (if only by failing to make a new will after remarrying).

Or alternatively, you, or your DH, might decide to leave everything to your local cat's home charity. These things do happen and there are court cases about it that, sometimes, go all the way to the Supreme Court.

I often think of a will in a similar light to insurance. 99% of the time we don't actually need the insurance, but we get insurance just for that 1% chance that something catastrophic might happen.

Think of leaving your share of the estate in trust as similar to an insurance policy. 99% chance nothing untoward will happen anyway, so it didn't make any difference.

But what about that 1%, or 0.1% chance?