In the first throes of love, much as thoughts are of hearts and flowers rather than wills and Powers of Attorney, when a relationship breaks down, you are more likely to be reaching for the tissues than thinking about joint property issues. Sadly though, legal issues survive the breakup.
Managing assets following a relationship breakdown
Being together means owning things together and, when a relationship breaks down suddenly, who gets what now and in the future becomes important. Panic not, the family and private client departments at Russell-Cooke can help.
If you own property (or indeed anything – e.g. a bank account) jointly as joint tenants and you die, then the surviving joint owner inherits the whole asset whether you are married, divorced, separated, single or you have a will that gives your whole estate to someone else. The asset passes by survivorship. So, any asset held in this way needs to be looked at in the context of relationship breakdown. Pending any agreement to split property - think about severing the joint tenancy which means you would then hold it as tenants in common (i.e. in separate shares) that can pass according to your will or the Intestacy Rules (if you do not have a will).
What happens to your joint property when you separate? Sometimes you end up in a dispute and, although we can certainly help with that aspect, you can also take preventative steps. If you’re taking the leap from sharing romantic dinners to sharing a mortgage, our family team can help document what each of you contribute to any purchase in a declaration of trust or cohabitation agreement that will mean one less thing to untangle in the future, should the worst happen.
Remember too, that if a partner moves into a property that you own, the often quirky nature of the law could mean they end up owning a piece of your property. This can sometimes happen even without their ever having put down any cold, hard cash. Documenting that this isn’t what either of you intended (in a Declaration of No Interest) before your partner gets their knick-knacks on the mantelpiece, could avoid that particularly nasty issue when things break down.
And that’s all before we’ve talked about owning and co-owning assets if you are (or are about to be) married / civilly partnered. Basically, pre and post nuptial / civil partnership agreements could be your friend here but that’s for another time (or a helpful and informative discussion with our Family Team).
Managing your will following a relationship breakdown
Talking of marriage, when it comes to succession law, you remain married/civilly partnered until you are granted the final order, decree absolute. So, if you die without a will but before decree absolute, then the bulk of your estate could pass to your, soon to be EX spouse. Remember too, that marriage revokes a will so, through blissful ignorance (possibly down to the above-mentioned throes) or maybe because you never got round to making a will/a new will – your ex could get it all (or, a lot of it).
But what if you get married and did make a will? You leave everything to the (then) love of your life, later get divorced but don’t update/get a new will? Well, your ex-spouse is treated as having died before you for the purposes of any appointment as executor or beneficiary. This might sound rather satisfying as a scorned spouse however, if the Ex was the only executor and the only (or main) beneficiary, we’re back to the Intestacy Rules and (depending on circumstances of course), Cousin Marge in Canada being your executor and inheriting your worldly belongings.
And, you guessed it, the same is true of lasting powers of attorney; if your spouse is a sole attorney or appointed to act jointly (not jointly and severally) with someone else and you divorce, then that lasting power of attorney will come to an end. This means there will be nothing in place if you need someone to make financial (or welfare) decisions on your behalf at a time when you are unable to make them yourself.
At the risk of sounding like a broken record (I will survive, perhaps?) when you go into a serious relationship, review how you hold your assets, do a Declaration of Trust then make a will, make a lasting power of attorney and if you suffer relationship breakdown…do it all over again.
After all, do you believe in life after love?
Alexandra Mackenzie Smith is a senior associate in the private client team in the Putney office, and advises on a wide range of private client matters to include estate administration, wills, lasting powers of attorney and trust administration.
Richard Shaw is a senior associate in the family team in the Bedford Row office.