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How do I write my will to protect my children against marriage failure?

Marriage failure runs at 1 in 3 in a first marriage. It runs closer to two thirds on a second marriage. If you have 3 kids, you can take for granted the statistical probability that one of them will have a marriage failure. What if that marriage failure happens after you have died? How do you protect your legacy and the inheritance you have given your child from a marriage failure your child has after you have died? Can you?

“Fear of a child’s marriage failure after a client’s death is a key driver for a lot of our clients estate plans” says Ben Siegmann, Managing Director of SA Estate and Succession Lawyers, a specialised estate and succession law firm.

So what are some of the strategies adopted by people to protect against their child’s marriage failure after they have died?

Part of the Estate Planning exercise involves looking at ownership structures for real property, loan agreements and debt arrangements between a person and their child – all of which when carefully structured can provide some protection for your child in the event of future matrimonial failure.

By far though, Testamentary Trusts are our preferred solution at SA Estate and Succession Lawyers to the problem of a child’s marriage failure after a testator’s death. A testamentary trust is a trust established in a testamentary document (a Will). Trusts are not new and have been used for a very long time to place assets in safer hands than the beneficiary of the trust whilst ensuring the beneficiary continues to enjoy the benefit of the assets. In the context of Family Law, a testamentary trust offers some protection for the child of the testator after the testator’s death if the child has a marriage failure and can in some circumstances ensure that your child’s inheritance is not part of the matrimonial property pool available for division between your child and the spouse who is leaving your child. The amount of protection depends a lot on how the testamentary trust is drafted, who the beneficiaries and potential beneficiaries are, how the trust is controlled, particularly your child’s involvement and the specific mechanisms in the testamentary trust deed (your Will) dealing with the separation of your child after your death. All of these matters must be very carefully considered and require specialist drafting. If you would like to discuss how to draft a testamentary trust in your Will to give your children the best chance of keeping their inheritance in the event of a matrimonial failure after your death or would like some further reading on testamentary trusts and the approach of the Family Court to them, get in touch with us for a free no obligation chat.


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