Second marriage - what are the estate planning implications?

Getting married is a joyous time. However, if you are one of the 20 per cent of Australians who will do so a second (or more!) time, children from a previous marriage can present complex estate planning challenges.

Many Australians don’t realise that when you remarry, in most cases, your existing Will becomes invalid. For blended families in particular, this means family disagreements over how assets are distribution can be common and it might be a good time to discuss your situation with a family wealth management expert.

To make sure your hard-earned assets don’t end up in the pockets of lawyers here are some things to keep in mind.

Without a Will

In the happiness of getting married it’s easy to overlook that your Will needs to be updated to reflect your relationship change. Not doing so means your assets are subject to the intestacy rules of the state you live in. This may mean your estate is passed to your spouse – and from there, not where you intended your assets to go.

The family home

Generally, as joint tenants, the family home will transfer to the surviving spouse. Changing home ownership to tenants-in-common however, means each has a 50 per cent interest in the property that can be dealt with in each of their separate Wills.

Being tenants-in-common means each provides the other with a right of residence for their interest in the property. This means that the survivor will be able to remain in the property for the duration of their lifetime.

Superannuation

Many people don’t realise that they don’t own their super. Instead it is owned by trustee of the super fund and held on your behalf. That means that if you die, it doesn’t automatically go to your estate. Instead the trustee will decide where the money should go.

To ensure that your super goes where you want it to, put in place a binding death nomination. This will, in a legally binding way, tell the trustee what you want to happen with your super if you die.

With over 1.1 million self-managed super funds (SMSFs) in Australia, this type of super fund will also be a consideration for many estate plans. One consideration is moving from an SMSF to a small APRA fund (SAF). The difference between these two types of funds is the trustee structure. In an SMSF, the members of the fund are also the trustees of the fund. In a SAF, the services of a professional trustee company are employed. So, in the event that there are family disputes, the use of a professional independent trustee protects the wishes of the deceased.

Testamentary trusts

A testamentary discretionary trust is activated only on death and provides a trustee the discretion to distribute assets between the beneficiaries nominated in your Will. As the assets are not legally owned by the beneficiaries, there is a greater level of protection from legal proceedings arising from marriage breakdown or bankruptcy.

You don’t need to remarry

In many circumstances it isn’t necessary to be married before a partner is entitled to a share of your estate. Depending on where you live this could as little as two years of continuously living together.