The importance of an elderly pre-nup - expert opinion - Spear's Magazine

The importance of an elderly pre-nup – expert opinion

The importance of an elderly pre-nup – expert opinion

As more people are getting married in later life, there are a few risks to look out for, writes Jessica Jamieson

According to the Office for National Statistics, the number of people marrying over the age of 65 rose by 46 per cent in the decade to 2014.

If you are one of them, what safeguards should you establish to ensure you live ‘happily ever after’?

Wills

Marriage automatically revokes a Will. Wills should, therefore, be redrafted as soon as possible after the big day (or even beforehand, in contemplation of marriage), otherwise, intestacy rules could mean that your spouse inherits everything and your own family members miss out.

Wills can be carefully drafted to ringfence assets for future generations. This can be achieved by creating a life interest trust for the new spouse, giving them the right to income and to live in any property. On the spouse’s death, the remainder of the estate can pass to your children or other family members.

Anyone thinking of excluding a spouse from inheriting under their Will should bear in mind the Inheritance (Provision for Family and Dependants) Act 1975. A spouse can challenge their entitlement to the estate if ‘reasonable provision’ has not been made for them. The reasonable provision need not be for their maintenance.

Nuptial agreements

An agreement entered into prior to marriage (a prenuptial agreement) or during the marriage (a postnuptial agreement) can help safeguard wealth which either party brings into the marriage. It can also be used to protect large sums of money received during the marriage (such as inheritances).

Nuptial agreements are increasingly popular with those who are getting married again in later life and who, quite reasonably, wish to protect what they have for their children and grandchildren.

These sorts of agreements are entirely bespoke and can be adapted to your needs.

Elder abuse?

You should also bear in mind the possibility of abuse. Although massively underreported, financial exploitation is becoming increasingly common among aging adults, who are more susceptible to financial abuse due to disability, vulnerability or loneliness.

Unfortunately, the vast majority of abusers are close friends or family members, and a shared living situation is a risk factor for elder abuse.

Lasting Power of Attorney (LPA)

All individuals should consider appointing attorneys under a financial decisions LPA to protect assets during their lifetime.  Attorneys can manage your finances, and have the power to do anything with your assets that you can do yourself. An LPA can be used as soon as it has been registered with the Office of the Public Guardian (the governing body which oversees LPAs) but your attorneys must consult you while you still have capacity.

Appointing attorneys (such as children from a previous relationship, a trusted friend or a professional) safeguards against a future spouse or third party depleting your assets if you then lose capacity.

You should look out for warning signs that a relative is being financially abused, such as if they are being put under pressure in relation to their assets, have unexplained withdrawals from their bank account or they make unexplained or unusual changes to financial or legal documents.

Jessica Jamieson is a partner at Cripps Pemberton Greenish. For more information click here



 

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