How a 'Pre-nup' Can Secure a Family's Inheritance


Does this sound familiar? A typical family is concerned that their stepmother – their father's new wife following remarriage – could be awarded property if the marriage ended, which they had hoped to inherit.

Premarital Agreement
Legal experts say the family's worries are not without foundation. To avoid the possibility that the father's assets might end up being owned by his new spouse, it's important that he clarifies at an early stage what he wishes to happen.

A Pre-nup Could Be The Answer

One step to guard against this problem is to prepare a pre-nuptial agreement. Drawn up prior to marriage, a 'pre-nup' determines what the couple may do with their respective assets should the pair divorce. This is a situation which now affects around a third of second marriages in the UK.

Sensitive Issues

For a new relationship founded on a rekindling of romantic ideals instead of the harsher realities of who receives what at a later date, these can be sensitive areas.

In fact a pre-nup, which potentially benefits both sides, is an eminently sensible course of action which ought to be considered by all who remarry, particularly if each party has their own family to think about.

In this respect a pre-nup is little different to buying life or home insurance, arranging a will or setting aside funeral funds.

Collaborative Process

In cases such as the example above, the father should contact an expert in Family Law and request a pre-nup based on collaborative process.

Under this system each party meets, with their respective lawyers in attendance. Important areas of mutual interest, from finances to future relationship plans, can then be discussed and agreed in a relaxed and friendly atmosphere.

Not Necessarily Binding According To Lawyers

As useful as a pre-nup can be, it should be borne in mind that these agreements are not currently legally binding in the UK.

"Even if a pre-nuptial agreement is drawn up, a judge could still overturn its provisions," said Paul Foster, Partner in Family Law with Simpson Millar LLP.

"There could be any number of reasons for this, such as if one party were to become gravely ill or infirm and in need of extra care. A judge might decide this is reason enough to disregard the terms of a pre-nup. While benefiting the new spouse, such a situation could leave children from an earlier marriage without their original inheritance."

That said, according to Paul, the attitude of the courts has never been more favourable to pre-nups. There is a very good chance that a pre-nup drawn up by skilled legal experts will be upheld.

Assets Still More Likely To Be Secured

Despite possible unforeseen events, a pre-nup remains a useful way of securing assets for the original beneficiaries.

"But it's important to ensure a pre-nup is drawn up as early as possible in a relationship," Paul stressed, adding that many couples leave it until the last minute.

"There's far more likelihood that an agreement will be deemed legally binding if it's entered into sooner rather than later. It should certainly be drawn up at least 3 weeks before the happy couple's wedding day."

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