For the last few years, the numbers of couple getting post-nuptial agreements, or “post-nups”, has increased dramatically. Like the more familiar pre-nuptial agreement (pre-nup), a post-nuptial agreement (post-nup) sets out how assets are to be divided should a couple get divorced. The difference is that a post-nuptial agreement can be made at any time during the marriage.
Who is getting a post-nup?
Increasingly, retirees with more modest wealth are looking at post-nups to secure their own part of the accumulated wealth should they divorce. They don’t want to rely on a financial settlement that would be negotiated at the start of divorce proceedings, when emotions are running high.
Post-nups and inheritance
With the average property in England now worth just over £288,000, adult children approaching their own retirement are now inheriting substantial amounts from their parents including property, monies, assets, and family heirlooms.
The crux of the matter is this:
If you inherit from your parents, would you be willing for this inheritance to be split/shared with your spouse should you divorce?
A post-nup ensures your own individual inherited wealth is defined and separate from marital property that would ordinarily be shared between you both on divorce.
As family lawyer Joanne Wescott says, quoted in IFA magazine:
“For those who have seen their financial circumstances change significantly over the course of their marriage, a post-nup can bring peace of mind.
“Whilst it may be a difficult conversation to have with your other half, my experience is that couples tend to be in agreement about inheritances and gifts from family, especially if it goes on to benefit the children of the marriage.”
Do we need a post-nup?
There are several other reasons to consider a post-nup if you are retiring soon, or one of you has already retired.
Inheritance tax planning
Estate planning includes ensuring that those you want to benefit get what you want, and the tax man gets as little as possible! A post-nup should always be written in association with professional advice from a qualified advisor, to ensure that any division is fair and also tax-efficient.
Expecting an inheritance in the future
Your post-nup can also include provision for an inheritance you expect to receive in the future – so long as you know what that might be! Discussing with your parents what is in their will is always a good conversation to have anyway, especially if you are an executor. The last thing any family wants are unexpected surprises in a will at a very emotional time in our lives.
Remarrying
If you are bereaved or divorced and then remarry, a post-nup can help define what you each brought to the new marriage, and which items are ‘ring-fenced’ for members of your first/second families.
A note of caution. Given the non-legally binding status of a post-nup (see below), you should also include these ‘ring-fenced’ provisions in your will as a priority. You can also provide a will clarity statement to avoid any misunderstandings leading to people contesting your will.
The next generation are financially secure
As we age, we may come to realise that the next generation don’t need as much financial support as we expected. Our own priorities may also shift, and we may decide that we want to leave a legacy to a charity, or several charities. Again, this kind of provision can be laid out in a post-nup but should be included in your will, to ensure your executors pay the money to the charities as you requested.
Not divorcing quite yet
Not everyone whose relationship falters decide to get divorced immediately. If you’re retired, you may want to just continue as you are and sort out the finances later. In this case, according to solicitors Forsters:
“A post-nup can set out the detail of how the finances will operate on separation before divorce, and on ultimate divorce (as well as giving thought to what would happen if one party dies after separation but before divorce).”
Long-term care provision
It’s all too easy to assume that we’ll be fit and healthy throughout our retirement. Estate planning should always include provision for your own long-term care. Planning now can help you get the care you need, when you need it, and enjoy all your retirement. A post-nup can help define how assets are divided fairly so you both retain your independent assets and protect any long-term care element in your estate.
Is a post-nup legally binding?
It’s important to say that whilst a post-nup is a legal document that you both sign, it is not automatically binding in the UK courts.
In the event of a dispute over a financial settlement as part of your divorce, the court can make its own decisions. In practice, courts will usually take into consideration a post-nup agreement if it is fair and still reflects the current circumstances.
A landmark Supreme Court ruling in 2010 stated:
“The court should give effect to a nuptial agreement that is freely entered into by each party with a full appreciation of its implications unless in the circumstances prevailing it would not be fair to hold the parties to the agreement”.
What is included in a post-nup?
A post-nuptial agreement can include any provisions you wish to make. It should cover the core elements of your joint finances when acquired or accrued after your marriage, including:
- the family home
- investment portfolio/s
- pensions and other savings
- business ownerships or assets
- inheritances
- support/maintenance from the partner in the stronger financial position
- arrangements and support for children
How to create a post-nup
Post-nuptial agreements are a legal document, so you should think carefully about making a post-nup and take professional advice first. Your post-nup should also be drawn up by a qualified professional.
The process of making your post-nuptial agreement will also include full financial disclosure by both of you, so you should both seek independent financial advice. This ensures that your post-nup is a true picture of your financial situation, and nothing is hidden or omitted.
Wills and post-nups with Panthera Estate Planning
Making or amending your will should always be your first priority when deciding who will inherit what. A post-nup is more of an insurance document such that if you do get divorced, the division of assets is laid out in detail.
Once your divorce is completed, you should make a new will. Also remember that when you remarry, any previous will becomes invalid, and you should write a new will immediately.
For more information on will writing and estate planning: