Legal Tip 197: Consider the remarriage Risk when doing a Will

When one spouse dies often the surviving spouse remarries. This will mean any inheritance received by the surviving spouse could be at risk of not ending up in the children’s hands.


Example
Homer and Marge are happily married and have 3 kids, they prepare their wills so that if one dies the survivor gets everything, if they both die the kids share everything equally. Sounds good so far.

Homer dies.

Marge inherits Homer’s assets which were 50% of the main residence, 50% of the investment property and 425 pens stolen from his employer over the years.

So far all is well.

A year after Homer’s death Marge gets on tinder and eventually marries a guy called Barney.

Marge’s will is now revoked by the marriage, marge dies and under the intestacy laws of NSW the assets of Marge get shared by Barney and the kids.

Even if Marge didn’t marry Barney he might still be able to take a share because he is a de facto spouse. If the will was in place still he could make a family provision claim. there is also the possibility that Marge will knowingly prepare a new will and leave Barney something - or everything.


So when making a will consider that your spouse could enter a new relationship after your death and plan for it. Assume it will happen

 

If anyone marries (even someone previously single) does that mean that any previous wills are null & void?

 

Did Homer die in jail?

 

Who ends up with the 425 pens they must have some collectable value..

 

Homer was released on compassionate grounds, but died 3 days later on the kerb side waiting for Bart to pick him up
Barney traded the pens down the pub in return for BEER

@Terry_w would Homer having all asets in a testementary trust help ?
He could list that all his assets go to the 3 kids upon Marges death maybe ?

 

Yes
SUCCESSION ACT 2006 - SECT 12 Effect of marriage on a will

 

If Homer dies before Marge he would have left his property to someone already so he can't direct it into a testamentary trust at a later date.
If he left his assets to a testamentary trust it would have been out of Barney's reach - generally

 

Ok, that's something I didn't think about or know before. Once a single person marries they need to create a new will as the old one will automatically be revoked.

 

Yes and this was a big issue when same sex marriage came in as many who were defactos for many years then remarried. Most probably don't know their wills are largely ineffective.

 

and what if Marge has a pre-nup with Barney before they marry, would this enable the assets to go to the 3 kids after she dies ? or Marge not having to sell up and split 50/50 with Barney in the event they divorce ?

 

is pre-nup of much use in the family court ? assuming Marge comes with assets before marrying Barney and he does not have any losses such as loss to income from having to stay home and care for the kids etc...

 

It depends what the pre-nup says. but probably worth considering, especially as Barney is a drunk...

 

Pre-nups are binding financial agreements under the family law act and very useful.

 

say Homer and Marge live in Australia. He is a well off lawyer and Marge earns an OK income but is the primary carer for the kids while he climbs the corporate ladder ...they married young and at 30 Homer decided he wanted to be free so they divorced. They just have an expensive family home, cars, super and 2 small children together, so Homer would be liable for child support. Generally, in this case what are Homer and Marge generally entitled to claim if they go separate ways and want to avoid fighting it out in court paying the lawyers exorbitant fees ? 50/50 each in assets or do the young kids get a part of their asset pool too ?

 

You would have to ask an experienced family lawyer that question. It would depend on the circumstances and the factors outlined at s79 Family Law Act. I don't think there could be a general answer based on the facts above.
@thatbum any idea?

 

Not even close to enough information to even give a rough answer. I can say that the kids don't get their own portion of the asset pool though.

I'll say that most of the information in that paragraph is largely irrelevant though. Its always interesting to hear what people think is of primary relevance in property matters - because its not usually what they think.

The big pieces of information a family lawyer will probably need:

- Length of relationship
- value of asset pool
- value of assets brought in at the start of the relationship
- incomes or earning capacity of the parties
- age of kids and likely shared parenting arrangement moving forward

The problem is, even the above still isn't close to being enough information to give reliable advice, and it needs a lot more discussion and nuance about the specifics of the client's situation.

 

Who made financial and non-financial contributions to that property too.