Married Couples and Same Sex Wills

Emeritus Legal advise on wills for married couples or civil partners with children.

Generally, the overriding consideration for married couples with children is to make provision for the surviving spouse and children. The couples we see are generally motivated to do something if they are going on holiday or are concerned if something should happen to the both of them. Married couples are rarely motivated to come and see us by tax issues.

One of the first considerations of married couples with minor children is to decide on the appointment of guardians in the event that both parents should die.

It is important that both parties to the marriage are in agreement as to what they want to include in their respective wills. Both should “sing from the same hymn sheet.”

Please ensure, as far as is possible, that there is equality with ownership of the assets/property. If, for example, the house is held as joint tenants and/or bank accounts are jointly owned then the deceased’s share of the property will automatically go the survivor. If the survivor has not made a will at the same time then the property will be distributed in accordance with the intestacy rules which may not be what is required.

In most cases the most appropriate wills in these circumstances will be for each party to leave everything to each other and then to the surviving children when both parents have died.

There are more tax efficient wills and whether or not they are used will depend on the particular circumstances of the case.

Trusts in wills can be used to prevent some of the assets generated from a first marriage being depleted if the surviving spouse re-marries. Trusts in wills can also be used to preserve assets for the future.

Married couples with young children.
Creating what is known as a discretionary trust in a will is also a sensible option to discuss. If both parents were to die leaving minor children then our experience is that they do not want the children to inherit a substantial amount of money when attaining 18/21. The children may be debt-ridden (Tuition Fees) and may not have the maturity of being able to deal with the money. A discretionary trust means what it says – the trustees will be able to assess the needs of the child and pay for their education, welfare and maintenance as is required and may favour one child over the other if required.

Consideration needs to be given to the pension rights of the couple, if any. What will be the lump sum from the pension fund be if the person dies before pensionable age? Who are to benefit from the lump sum – the surviving spouse only or the surviving spouse and children and, if so, in what shares?

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