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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?

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.

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.

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?

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.

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?

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 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 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 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 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

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

Sorry that was meant to be a shock not an wink

WaitingForPeterWimsey Fri 06-Dec-13 13:59:20

Cinderella scenario happened to my aunt. She and her late brother were left nothing as her DF left it to his dw (her sm). The sm left it all to her children only wink

passedgo Fri 06-Dec-13 13:45:28

Chunderella on a political note I think it is absurd that people have such little knowledge about law and rights (myself included). I know a little knowledge can be a dangerous thing, but knowledge is also power.

The media contorts any government messages including things like budget statements, which can be quite useful for knowing how to plan your life - everything is distilled to the most controversial point and we are left still clueless.

passedgo Fri 06-Dec-13 13:40:03

So I made the suggestion on Wed evening. Described it as 'cheaper than paying solicitors to do the Wills, contracts etc' so as not to frighten him. Our RL is WAY past the romance stage and that would seem odd to me and to him. He completely ignored what I said (often does this when something serious needs to be decided).

We are going through mortgage and finance stuff at the moment so perhaps a chat with a solicitor will need to be arranged.

scottishmummy Thu 05-Dec-13 20:57:00

If you want all the legal protection of marriage,get married.otherwise see solicitor
Become fully informed of all the facts,implication of being unmarried,how affects you
Marriage isn't desired by everyone,but I'd say if you're really wanting to be married have that marriage conversation v early on.and if one partner isn't for marrying at least you'll be clear.

Chunderella Thu 05-Dec-13 09:24:21

No problem. I've just spent enough time working in the law, some of it in the advice sector, to have a bee in my bonnet about people knowing their legal position! There are some incredibly worrying misconceptions out there.

Nessalina Wed 04-Dec-13 23:22:05

This thread is properly fascinating! Friday & Chunderella - excellent & useful know-how, thanks ladies grin

IrnBruTheNoo Wed 04-Dec-13 19:31:08

Unfortunately, you have to think with your head not your heart when it comes to Wills, and working out the future in the long term once children come along.

I love DH, but I also want us to both we very aware of what will happen if one passes away before the other and what we'd be entitled to. You have to remain transparent as a couple.

Chunderella Wed 04-Dec-13 17:42:35

Afraid I don't know friday I've never done any court of protection work at all. I'm a solicitor but I now only do immigration- did family and wills whilst training but that was over 3 years ago. So I know a fair amount but am not current.

Amicissimma that's a bit harsh. I can envisage any number of scenarios where I might love someone as much as it is possible for any human being to love another, but still not want them to get assets before DC did. Gambling problem, for example, or anything that could lead to a lot of money being wasted. Having been left assets already by parents on the understanding that they'd be passed down to my children- heirloom jewellery perhaps (I should be so lucky). DH and I are more of a pool everything type couple, but then neither of us had any children or assets before getting married.

EvilRingahBitch Wed 04-Dec-13 17:29:25

Whilst I see your point of view ammicissima, where one party has brought very substantial family assets to the marriage and dies young, you do occasionally end up with bona fide "Cinderella" situations where the dead mother's assets are passed to the father, who then remarries and dies, leaving everything to the second wife - who then leaves everything to her children, cutting the child of the first marriage out completely. Rare but by no means unheard of.

friday16 Wed 04-Dec-13 17:18:15

Chunders makes a good point about maintenance.

Suppose you die tomorrow. Your partner decides to move to live with his parents/sister/whatever so that there is more childcare and support available for his children. Your children hold your house in trust. After sixteen years, they can sell it. But in the meantime, who pays the (not inconsiderable) council tax, insurance and maintenance bills? He'd be a mug to do it out of his income, probably couldn't afford to, and may not be able to (can you get buildings insurance on someone else's property?)

I've not dealt with the court of protection in this guise. But my father did have to get a full-on court of protection arrangement for his mother-in-law, because she became incapable of administering her own affairs without an EPoA (as it was in those days) having been set up. It was a complete nightmare, and also extremely expensive, with very complex accounting requirements As things stand, (chunderella may know the details) your children's assets after your death would be administered by the court of protection. That would be expensive, inflexible and possibly have perverse outcomes. Get a will, at least, to sort this out.

amicissimma Wed 04-Dec-13 17:16:59

I find it so sad that there are people who spend their lives with another person, who have children with that person but don't want that person to benefit from the fruits of their labour/assets, either in life or death.

Not my idea of a loving relationship - the sort I want to raise my DCs in.

friday16 Wed 04-Dec-13 17:10:56

I can see the house being sold/remortgaged for ridiculous reasons and that there would be nothing to pass on.

Support that after you die, your husband's job relocates? Suppose that after you die, one of your children falls ill and it's necessary to buy an adapted bungalow? Suppose that after you die, your partner kindly offers to merge households with your mother so that the children can be raised better by both families, but can't?

I am more than happy for dp to stay in the house with them

Without a will, that isn't certain. It depends on what the trustees (if you are intestate, the Court of Protection) decide is in the best financial interests of the children once they reach eighteen. They are not responsible for ensuring that the children's homelife is beneficial, just that the investment makes the best return.

and that money from insurance & savings is to be used for them

Without a will, it can't be: it'll be in trust, and unless that trust has an explicit provision for its use for their education and maintenance, the money's tied up until they're 18. So if your partner wanted to, for example, be a SAHF for your children, he can't. If your partner lost his job, they can all live on benefits while looking at the money via the medium of bank statements. I doubt that's what you'd want.

I also assume that were we to marry that he would then have spousal rights to the house

Consult a solicitor. It's not as simple as that.

If you don't have a will, however, all your assets will be unavailable for any purpose for your children (education, ponies, cancer treatment) until they are eighteen. I don't see how that's a good thing.

Chunderella Wed 04-Dec-13 17:03:19

325k seems a huge amount to me, but I live in the north and you can get good sized houses even in pretty nice areas of town for 250-300k. In London it wouldn't go very far.

Onedog if your main priority is for your estate to go to your children, yes you're better off remaining unmarried. You could allow DP to have a lifetime interest in the property, which means he gets to live there until he dies but doesn't own it. Sort out who's responsible for the upkeep and maintenance if you do this, though. Anyway if this is what you want, see a solicitor and get a good will drawn up.

Sorry, that was a reply to friday16 thanks for taking the time to reply smile

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