February 14, 2025

Guest Post: Marriage in Later Life: A Guide to the Financial and Legal Implications

Nick Everything Else guest post, families 2 Comments

This Valentine’s Day I’m pleased to bring you a guest article on a subject that I know will resonate with many readers of this blog.

Finding love in later life is clearly to be celebrated. But there are potential pitfalls as well, especially if you’ve been married before and/or have children from previous relationships. Mistakes made now can have costly – and stressful – consequences for you and your family further down the line.

My guest today, Victoria Fellows, a partner and head of family at the Birmingham office of HCR Law, knows this all too well. And she has some excellent advice for anyone who may be contemplating tying the knot (again) in their later years.

Over to Victoria then…

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More adults are remarrying in later life than ever according to the Office of National Statistics, and it could be a smart financial move as much as a romantic one.

Marriage is an important decision at any stage of life, but when it comes to later-life marriages, the financial and legal implications take on an added level of significance which can include both benefits and challenges. This is especially likely if you have been married before (which accounts for most marriages among over 50s) or have children from previous relationships.

One of the primary concerns when entering a later marriage is protecting your children’s and/or extended family’s inheritance rights. In the absence of proper planning, a surviving spouse may inherit a significant portion of the estate, potentially diminishing what your children from earlier relationships would receive. This can lead to complicated family dynamics, particularly if your surviving spouse chooses to remarry or if your children feel their inheritance has been unfairly diminished.

There may also be inheritance tax (IHT) issues if the combining of assets pushes the estate value above the inheritance tax threshold, creating additional financial burdens for children who inherit.

So how can assets be protected to provide reassurance to the happy couple and their families?

Pre-Nuptial and Post-Nuptial Agreements

In addition to thinking about what happens to your wealth when you die, it’s also worth giving some thought to what might happen if you separate.

A pre-nuptial agreement is a legal contract entered into before marriage that sets out how assets will be divided in the event of divorce or death. While pre-nuptial agreements are not legally binding in England and Wales, they can be persuasive if challenged in court, particularly if both parties entered into the agreement voluntarily and with full disclosure of assets. In later-life marriages, a pre-nup can be used to protect children’s inheritance rights by ensuring that assets accumulated before the marriage remain separate and are passed down to children.

A post-nuptial agreement can serve a similar purpose but is created after the marriage has taken place. Although UK courts are not legally obliged to uphold these agreements, post-nups can still be considered, especially if they are seen as fair, transparent, and made with legal advice.

It can be an awkward subject to raise, but nuptial agreements simply set out what a financial agreement would look like were you to separate and allow you to ring-fence any assets that one or both of you are bringing to the marriage. Often we find that our older clients feel more confident about getting married once they have raised the issue of a pre-nup with their partner because it provides both parties (and their wider families) with clarification on what would happen if they were to separate further down the line.

Wills and Trusts

Creating or updating a will is crucial to ensure that assets are distributed according to your wishes after your death. For individuals in later-life marriages, it’s vital to establish clear provisions that reflect your intent to protect children’s inheritance, ensuring that your assets are passed to your own children and grandchildren not your new spouse’s family. A well-drafted will can explicitly set out which assets should go to children from previous relationships and can address potential challenges from a surviving spouse.

Many people are unaware that when they marry a previous will is likely to become null and void. Therefore, if you pass away without making a new will, the law will decide how your assets are distributed, which may not reflect your wishes or the needs of your loved ones.

In addition to creating or updating a will, you can consider a life interest trust which could upon your death give your surviving spouse the right to an income for the rest of their life, at which point the remaining capital would be passed to your children. This will prevent the entire estate passing to a surviving spouse for them to pass on at their discretion, which may or may not include your children.

Joint Ownership and Beneficiary Designations

When it comes to property you should carefully consider whether joint ownership or beneficiary designations will achieve your asset protection goals. In the case of joint ownership, you can hold property as tenants-in-common, which ensures that you each own a specific share of the property. This is important because, upon the death of one spouse, their share will be passed on according to their will or trust, rather than automatically going to the surviving spouse.

Beneficiary designations on life insurance policies, pensions, and retirement savings plans should also be reviewed. In the UK, these designations take precedence over what is written in a will, meaning that you can directly allocate these assets to your children rather than your surviving spouse.

Pensions

If you have any ‘defined benefit’ (final salary) pensions, they will likely pay a portion of your income to your spouse when you die, so it’s important you update them to let them know of a new spouse.

Meanwhile any money that remains in ‘defined contribution’ pensions, such as stakeholder pensions or self-invested personal pensions (SIPPs) can be passed on when you die to your chosen loved ones.

You can tell your provider/s whom you would like to inherit your pension by completing an expression of wishes form.

Conclusion

Marriage in later life presents unique financial and legal considerations, especially when it comes to protecting assets for children from previous relationships. It’s essential to have open, honest communication with both your spouse and your children. Discussing your intentions, explaining why you are making certain decisions, and addressing any concerns upfront can help to avoid potential conflicts down the road.

With careful estate planning, the use of legal tools like pre-nuptial agreements, wills, trusts, and tax strategies, you can safeguard your wealth and ensure that your assets are passed down according to your wishes. By taking these steps, later-life marriages can be both emotionally fulfilling and financially secure, providing peace of mind for you your spouse and their families.

Victoria Fellows (pictured, below) is a partner and head of family in the Birmingham office of HCR Law.

Many thanks to Victoria and her colleagues at HCR Law for an eye-opening article on this important topic. It may not be particularly romantic but devoting a little attention to these matters now can potentially save you and your heirs a lot of grief in the future.

As always, if you have any comments or queries about this article, please do leave them below.