WHAT’S MINE IS MINE, AND WHAT IS YOURS IS YOURS. BUT WHAT ABOUT MY CHILDREN?

PROTECTING YOUR ASSETS IN MATURE RELATIONSHIPS

Frequently as lawyers we deal with mature couples who are entering into relationships for a second time later in life.

Typically, each person has acquired assets and one or both have adult children from prior relationships.  They rightly wish to preserve some of those assets for those children, yet would also like to acquire assets with their new partner.

It is usual that couples in such situations enter into pre-nuptial financial agreements to preserve their individual assets for their children in the event of a separation, and to only share defined assets with their new partner.

As family lawyers, we are trained to think about what will occur if a relationship breaks down and the entitlements of the parties in such circumstances. But we also need to think about estate planning issues if one party passes away whilst still in that intact relationship.  By entering into a new relationship, each party is granting the other various rights in the event of the death of one of them. This is even more so if one party dies without a Will.  The surviving partner may have a right to a share of their estate on intestacy.

Likewise, if one party dies in an intact relationship leaving a Will which makes no provision for the other partner, the survivor may have standing to make a claim for a share of the estate.

So it is vitally important that, if you are entering into a new relationship, you should give consideration to what will occur to your estate in the event you pass away.  You may wish to make some provision for your new partner in your Will, whilst leaving the bulk of your estate to your children, particularly if your ‘new’ relationship is a lengthy one.  You should also make sure to update the beneficiaries on your super funds and life insurance policies so as to ensure the wrong person does not receive a significant sum after your death.

Issues involving relationships between older couples can and do raise fascinating legal issues, including:

  1. Whether the parties are in a relationship or not
  2. Whether the parties can enter into a financial agreement (pre-nup)
  3. Whether the parties can understand the legal practitioner’s advice
  4. When and how separation might occur if one party goes into aged care
  5. Whether a party who has lost capacity can invoke the terms of a financial agreement
  6. How contributions might be assessed in such shorter relationships
  7. When future needs factors are relevant,
  8. The intersection with testamentary considerations.

Our family lawyers and estate planning lawyers work in tandem to make sure your legal document complement each other.  Call us on 4651 4800.