Marriage and Civil partnerships: Some thoughts from a succession and inheritance tax specialist

With the wedding season upon us, it is worth reminding ourselves of several key considerations when entering into marriage or a civil partnership from a succession and inheritance tax perspective.

 

  1. Under English law, marriage/civil partnership automatically revokes a Will. This is a quirk of English law – it is not applicable in Scotland and in other European jurisdictions.

    It means that if you have made a Will prior to getting married and your Will was not made in contemplation of your marriage, then following your marriage, your estate will pass under the Intestacy Provisions.  This may not be what you would like especially if you are entering into marriage with different levels of assets.  You may already own a property jointly with another person such as your sibling, and, in the event that something should happen to you, you may wish your share to pass to your sibling rather than your new spouse.

  1. If it is not your first marriage, you should ensure that any new Will is carefully drafted to protect any children from your first marriage. If you leave everything to your second spouse, you cannot guarantee that they will look after your children as well as their own.  This could mean that your children may have to bring a claim on the estate of the second spouse – a costly and stressful process!

  2. There is no such thing as a common law spouse under succession and tax laws (including both IHT and CGT). Therefore, if you have been in a long-term relationship but are neither married nor in a civil partnership, unless you have made a Will, your partner is not entitled to any of your estate.  Furthermore, there are no tax exemptions for assets passing to your partner even if you have made a Will.  For example, if you own a property together as joint tenants so that on your death your half share automatically passes to your partner by survivorship, if your half share is worth more than £325,000 (the current IHT exemption), then the balance would be subject to tax at 40%.

    As clinical as it may sound, one of the best ways of saving inheritance tax is to get married/enter into a civil partnership.  The latter can be both a same sex or opposite sex relationship.

    If you have not made a Will but were maintaining your partner, then he or she would have to bring a claim against your estate for financial provision.  However, they can only do so if when you died you were domiciled in the UK.

  1. Prenups have been recognised in the English Court following the Radmacher Case and they may be worth considering if one party comes to the marriage/civil partnership with substantially more assets.

  2. Finally, many people will be considering making cash gifts to the happy couple. Whilst there are a number of exemptions available for gifts from an individual on marriage/civil partnership including £5,000 to a child; £2,500 to a grandchild/great grandchild; and £1,000 to any other person, anything above those figures, after taking into account the £3,000 annual exemption, will be subject to the 7-year rule for larger gifts.

    Bear in mind that if you are making a gift other than cash, there could also be CGT implications. 

The above is not an exhaustive list but highlights a few matters worth considering.

Why you should appoint Guardians

If your children are under the age of 18, have you thought about who should care for them if both parents passed away?

According to research, seven out of ten parents in the UK parents do not have a legal guardian in place to care for their children in the event of their deaths.

If both parents with parental responsibility die and a guardian is not appointed in the will, then the courts will decide who looks after your children. There is no guarantee the court will appoint the person or people you would have chosen as guardians, so it is important to make the decision yourself.

Whilst a mother automatically has parental responsibility, unless the father is married to the mother, listed on the birth certificate, or a has court order bestowing parental responsibility on him, he will not automatically become the legal guardian if the mother dies.

A common misconception is that any children will automatically go to grandparents. This is not the case.  In the absence of a will appointing the grandmother/ grandfather as guardian, it may be necessary to apply to court to formalize this appointment. In some scenarios, there is even the risk that children are taken into care while guardianship is clarified.

Additionally, while godparents can have a crucial role in the lives and upbringing of children, they have no legal rights in respect of children in the event that their parents die. If you wish your children’s godparents to also be their legal guardians, you should ensure such an appointment is made by will.

Deciding who the guardian(s) should be is a difficult decision, so when appointing the guardian(s) here are some things to consider:

  • Do your children know the guardians? If so, what is their relationship like?
  • Do the guardians have the financial ability to raise your child if your estate cannot cover all the costs?
  • Do the guardians have similar beliefs, values, and outlook in life as you do?
  • Where do the guardians live?
  • What are the guardians ages?
  • Are the guardians likely make similar decisions to those that you would have made yourself for your children?

Also bear in mind, if each parent appoints different guardians the guardians must agree on decisions relating to the children, and if they can’t, it will be for the court to decide.

Finally, it is worth noting that your chosen guardians do not have to accept the appointment, so it is important that you discuss it with them, and they accept the responsibility, before appointing them.  However, providing your guardians are willing to accept the guardianship, you’ll have peace of mind you have done as much as possible to protect your children, even if you’re no longer around.