I’m getting married, how can I protect my assets?
I am getting married in May and have two children from a previous marriage. My estate is worth about £850,000 and I would like to know the best way of protecting it. I would like all my assets apart from my family home to pass to my children on my death and the family home to pass to them on my husband’s death. If I put everything in a trust for my children, will this also protect my assets against a potential future divorce?
All marriages come to an end, whether through divorce or the death of one of the partners, says Hazel Wright, partner at Hunters solicitors. After the end of your first marriage through divorce, you understandably want to ensure that your children benefit from the assets you now own.
Unlike in many other countries, in English law there is no fixed proportion of assets that must be shared with your spouse either on death or on divorce. If one spouse disagrees with what the other wants, the law tries to provide a fair outcome for everybody. Only if you die without a Will can we accurately predict the distribution of assets.
You are very sensible to think about setting up a trust. You must make sure you understand firstly that once your estate is an asset of the trust, you won’t own any of it. Secondly, your trustees must not share any trust capital or income with you once the trust starts. This is easier to achieve with the liquid part of your estate. The trust can set out your wishes for distribution of your estate on your death.
Once your family home is transferred into your trust, this will have a great impact on future decisions. Will you and your husband live in this home (you will need to pay rent to the trustees as you must not benefit from a trust asset)? Will you and your husband move house and buy a new home together? You won’t be able to contribute to that purchase by using any trust asset. If your husband remarries after your death, will your children want him and his new wife living in this home?
A trust works best if your marriage ends on death. It is not so bomb-proof if it ends on divorce.
The best way to protect your pre-marriage estate against a claim on divorce is to have a prenuptial agreement. Many people choose to sign them before a second marriage, for the same reason you should. If prepared properly, with separate solicitors advising each of you, the agreement is likely to withstand any claim by either of you. If it is not fair, it might be challenged.
Unfortunately, establishing a trust for your current assets in order to protect them from any possible divorce claim does not always work. The divorce court can interfere with your plan and change the terms of such a trust if its main purpose was to keep your husband’s hands off your estate.
You must take legal and tax advice before progressing any of your plans. Trusts are useful in estate planning but your decision to put assets into a trust is irrevocable.
Read the full article in the Financial Times here, behind a paywall.