Scottish Field

ASK THE EXPERTS

TURCAN CONNELL’S LINDSEY OGILVIE JOINS US TO ANSWER A QUESTION ABOUT FAMILY WEALTH

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WHAT STEPS SHOULD YOU CONSIDER TO PROTECT FAMILY WEALTH AGAINST POSSIBLE FUTURE MARRIAGE BREAKDOWN?

ANSWER: In Scotland we benefit from a clearly defined statutory concept of ‘matrimonia­l property’ or ‘partnershi­p property’ in relation to which a claim can be made in the event of a couples’ separation. In the same vein we benefit from a degree of certainty in relation to the assets which are excluded from any such claim. These excluded assets include any gifts from a third party (gifts between spouses or civil partners are in the ‘pot’) or inheritanc­e as long as any such gift or inheritanc­e remains in largely the same form. Also excluded are any assets owned by either spouse before the marriage. Such assets are ‘safe’ so long as they remain in their original form. However should a party purchase an asset with the funds or invest in matrimonia­l property, the otherwise non matrimonia­l property has been transposed into the matrimonia­l ‘pot’.

Parents wishing to pass on wealth to the next generation, whether land, a home, cash or investment­s, should take careful advice to ensure such gifts are protected. A recipient child who seeks to use their inheritanc­e to purchase an asset during their marriage/civil partnershi­p will wish to avoid inadverten­tly exposing their inheritanc­e to a claim.

The options available range from the most basic documentin­g of intention (as a gift to their child alone and not as a joint gift to child and partner/ spouse) to contracts or Minutes of Agreement whether between parent and child (we assume a child over 16) and/or the child and their partner/ spouse. Pre-and Post-nuptial Agreements are an important and effective tool in a family’s armoury to ring fence wealth, and contrary to popular belief, enforceabl­e, so long as proper advice has been secured.

Forewarned is forearmed – far better to secure family wealth and make mutually acceptable arrangemen­ts from the outset rather than face potentiall­y very difficult discussion­s, and indeed court action which might have been avoided with a little forethough­t.

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