Protecting the family inheritance from a 'predatory' marriage

  • Insight

04 December 2018

‘Predatory marriages’ hit the headlines recently when MPs debated making changes to the law in England and Wales in order to protect vulnerable people.

In Scotland there is already a greater degree of protection, but care is still needed to protect the family inheritance from exploitation. 

What’s the issue?

A ‘predatory marriage’ most commonly involves an elderly person with cognitive impairments (such as dementia) and a younger person who capitalises on this by marrying them – often in secret. 

In England and Wales, this creates a loophole. Assuming in the first place that the marriage was valid, the elderly person’s will is automatically cancelled. And, because the elderly person might not have the knowledge or wherewithal to prepare a new will, they can no longer direct where their assets go on their death. Instead, an unscrupulous suitor becomes entitled to receive (in most cases) all of their victim’s estate when they pass away.

This can often come as a big shock to surviving children who suddenly find out that their elderly parent was not only persuaded into a secret marriage, but also that the family inheritance has disappeared and is now with the ‘predatory’ spouse. 

Could it happen in Scotland?

Scots law provides a greater degree of protection against predatory marriages, because getting married does not automatically cancel a will. Of course, a vulnerable spouse might be persuaded to write a new will, but that could be open to challenge on the grounds that they did not know what they were doing or they were pressured into writing it.

The protection, however, is not absolute. There is still opportunity for the widow or widower to claim a share in the estate left behind by their spouse, irrespective of what the will otherwise provides. This is the concept of legal rights which protects against disinheritance.

This entitlement, however, is restricted to a cash sum of either one-half (where the deceased left no children) or one-third (where the deceased was survived by children) of the deceased’s ‘moveable property’ (cash, investments, personal possessions etc.) and no claim can be made against the family home. This means that, for most families, the most valuable asset is safe.

Aren’t they changing these rights?

There have been calls for reform of this area of Scots law, but the Scottish Government has recently announced that the rules surrounding these legal rights will remain in place.

What can I do to protect my family?

It is predicted that, as the population ages and conditions, such as dementia in its various forms, become more common, more and more people may fall foul of these predatory marriages. Although we don’t like to imagine that these types of situations would ever apply to us or to our family members, it is never too early to start planning for later life.

The key point is that everyone should have a will in place as it is this which provides the protection. If there is no will, then, for the vast majority of Scottish families, the surviving spouse inherits everything.

Wills should also be kept up to date. With marriage and divorce on the rise among those aged 65 and over, it is especially important to review a will after major life events.

Another protection which is helpful to have is achieved by putting in place a power of attorney. This allows the granter to appoint someone to act for them if they begin to lose capacity, or need help with decisions, and provides a safeguard against unscrupulous future partners.

If you’d like further advice on wills, succession planning and inheritance contact one of our Private Client Team. To learn more about the issues in this area, subscribe to our News & Insight.