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Estate planning tips for newlywed pensioners

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26/06/2014
Recent figures released by the Office for National Statistics show a significant increase in the number of marriages involving people over 65.

Many of these newlyweds will have previously been divorced or widowed, and may have children from earlier relationships.

Estate planning is vital for older couples who are planning to tie the knot, particularly those with children and significant assets. This will involve a review of their wills and tax affairs and possibly a pre-nuptial agreement (known as a “prenup”).

By way of an example, Bob and Jane are in their late 60s and are planning to get married. Bob’s first wife died some years ago and Bob has children from that marriage. Bob’s second marriage ended in divorce and he is still bitter about the financial outcome. Jane was previously divorced and also has children. Bob and Jane will be selling their current homes and using the money to buy a new house, which will be owned jointly.

It is essential that Bob and Jane sign new wills. They made wills a few years ago, but these will be cancelled by the marriage. If they do not make new wills, the law will determine how their estates will be distributed. The wills should be worded carefully, so that they continue to be valid after the wedding.

Although Bob and Jane would like the survivor to benefit from the estate of the first to die, they would like each of their estates to pass ultimately to their respective children. This could be achieved by including a trust arrangement in the wills. For example, if Bob dies first, his estate would be held in trust for Jane, who can remain living in the house and receive the income from Bob’s other assets. On Jane’s death, Bob’s estate would then be divided between his children, with Jane’s estate passing to her children.

As Bob’s first wife left her whole estate to Bob, her inheritance tax allowance was not used. Bob and Jane will therefore have three allowances between them. Their wills should be drafted carefully to ensure that the third allowance is not lost.

Bob and Jane should consider other ways of reducing the potential inheritance tax liability on their deaths. For example, they may wish to make lifetime gifts to their children. They should also review any nomination forms or letters of wishes that they may have signed regarding pension death benefits.

As they do not want the new house to pass to the survivor following the first death, they must ensure that it is owned as “tenants in common” (rather than “joint tenants”). On the death of the first of them, his or her share will then pass under the will, rather than automatically to the survivor.

Given Bob’s previous experience, he may want to consider a prenup. This is a formal agreement signed by the couple before their marriage. It will set out, for example, how the assets will be divided if the marriage breaks down.

Prenups are increasingly popular among older couples who are remarrying. Although these are not legally binding at present, a court will consider a number of factors when deciding whether or not to enforce a prenup. For example, Bob and Jane should each obtain independent legal advice before signing the agreement. They should also fully disclose their financial circumstances and aim to sign the prenup at least 28 days before the wedding.

Based on the recent statistics, many couples could be in a similar situation. It is important that they plan ahead and take expert advice on these issues at an early stage.

Mark Politz is a solicitor and chartered tax adviser at Thomson Snell & Passmore solicitors. He was assisted by Desmond O’Donnell, a senior associate in the Family Law team.

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