My second husband and I are now both in our 80s. We married about a decade ago and moved to a bungalow.
Even though I had the money and wanted my name on the deeds, he’s always refused.
He pays most of the bills and is on a mission to spend all his money. He doesn’t like money to pile up in his bank account.
In his will he has left the property to his children. Nothing to me. But he’s now talking about selling the property so his children can have the money and him and I moving into a rented property.
My question is if that happens and further down the line he has to go into care, will I be responsible for having to top up any care home fees? Not his children who have already received and probably spent their inheritance?
He does receive a good private and state pension but that might not be enough.
In his will my husband has our home to his children, what will this mean for me?
Tanya Jefferies, of This is Money, replies: I’m sorry to hear about your situation, which sounds at best uncertain should your husband die before you.
You say you have money of your own, but it is not clear what your financial circumstances would be if your husband intends to move to a rented property, and is leaving you out of his will.
Your question therefore raises a number of issues beyond just who will be responsible for paying care bills in the future.
We asked law firm Kingsley Napley to answer you. One of its lawyers looks at your wider predicament and what you might do about it, while another explains who would be responsible for your husband’s future care fees if he goes through with his current plans.
They suggest you consider making an appointment with a solicitor, either by yourself or with your husband if you think he would agree to discuss inheritance issues together. You can find a lawyer in your area on the Law Society’s website.
If you want to talk over your situation with someone helpful and impartial before taking that step, it might be worth calling Age UK’s free advice line on 0800 055 6112. It has specialist staff who can discuss individual money matters, and perhaps suggest other sources of help.
Diva Shah: The fact that you are not named on the legal title does not automatically mean you have no rights to the property
Diva Shah, legal director in the private client team at Kingsley Napley, replies: In England and Wales, a person is generally free to leave their estate to whomever they choose in their will.
Therefore, your husband can make a will leaving his property and other assets to his children rather than to you.
However, if you ended up living longer than him, a surviving spouse is afforded certain protections if they are not provided for in wills.
If your husband were to die leaving nothing to you, then you may be able to bring a claim against his estate under the Inheritance (Provision for Family and Dependants) Act 1975.
The court has the power to order ‘reasonable financial provision’ for a surviving spouse if the will, or the intestacy rules, fail to make adequate provision for them.
Whether such a claim would succeed would depend on all the circumstances, including the length of your marriage, the financial resources and needs, ages and health of all the parties involved – meaning in this case you and your husband’s beneficiaries – and the size of the estate.
Rather than disinheriting you entirely, your husband could consider revising his estate plan so that you have security during your lifetime.
For example, this can be done through a life interest trust or a right to occupy property, with the capital ultimately passing to your husband’s children on your death.
This type of arrangement is commonly used in second-marriage situations to balance the interests of a surviving spouse and children from a previous relationship.
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Do you have property rights even if you are not on the house deeds?
The fact that you are not named on the legal title does not automatically mean you have no rights.
In some cases, a spouse who has contributed financially towards the purchase of a property, mortgage repayments or major improvements, or who can demonstrate a common intention that the property would be shared, may acquire a beneficial interest in it.
You say that you ‘had the money’ and wanted your name on the deeds when the bungalow was acquired.
If you can demonstrate that you made a financial contribution towards the purchase price, this could potentially support a claim that you have a beneficial interest in the property notwithstanding the fact that legal title is held solely in your husband’s name.
The strength of any such claim would depend on the evidence available and the precise circumstances surrounding the purchase.
It would therefore be sensible for you to gather any records showing your financial contribution, and consult a solicitor about this matter – on which more below.
Can your husband sell the property without your agreement?
If your husband is the sole legal and beneficial owner of the property, he would generally be entitled to sell it without obtaining your consent.
However, if it turns out that you have a beneficial interest in the property, your rights may affect his ability to deal with it freely.
In addition, as you are a spouse living in the matrimonial home, you may be able to protect your occupation rights by registering Home Rights at HM Land Registry.
This does not give you ownership of the property, but it can help prevent a sale or disposition without your knowledge and give you the right to occupy the property while your marriage continues.
You should therefore speak to a solicitor about both the matters discussed above – first, whether you have a beneficial interest in the property, and second, whether the registration of Home Rights would be appropriate in your circumstances.
Can your husband give the house sale proceeds to his children?
If your husband is entitled to the proceeds of the sale, he could choose to make gifts to his children during his lifetime.
However, such gifts may have wider legal and financial consequences, including in relation to inheritance tax, future care fee assessments, and any financial claims that may arise between spouses.
As explained above, it would be wise for you to consult a solicitor yourself in any event, but if your husband is agreeable and open to discussing these issues, you could see a solicitor as a family before taking any irreversible steps.
A conversation involving both of you and a solicitor about both your long-term housing needs and estate planning objectives may lead to alternative solutions that better protect you while still allowing your husband to benefit his children.
Jemma Garside: When a local authority carries out a financial assessment for care funding purposes, it assesses the individual going into care alone.
Jemma Garside, partner in the private client team at Kingsley Napley, adds regarding who is responsible for care fees: If your husband sells the property and gifts the proceeds to his children, the local authority may well consider this to be deliberate deprivation of assets if they consider that he intentionally reduced his wealth in order to avoid care home fees.
This is a genuine risk given his age and the fact that the transfer would be to family members shortly before care might reasonably be anticipated.
Where deliberate deprivation is established, the local authority can treat your husband as still possessing the value of those assets when carrying out his financial assessment.
This means he could be assessed as liable to fund his own care in full, despite having no funds left to do so.
His children cannot be compelled to return the money, which could leave him in a very difficult financial position.
Could you be liable for your husband’s care fees?
Regarding your own position as his wife, when a local authority carries out a financial assessment for care funding purposes, it assesses the individual going into care alone.
A spouse’s savings, assets and income are entirely excluded from that means test. A wife’s finances cannot be considered, regardless of how much she has, so she would not be liable.
If your husband’s pension income was insufficient to meet the full cost of his care, and he had no remaining assets of his own, the local authority would fund the shortfall.
That obligation does not fall on you as his wife, and it does not fall on his children either, even if they have already received and spent the house sale proceeds.
However, this assumes no deliberate deprivation finding has been made.
If the local authority concludes that your husband gave away assets specifically to avoid care fees, they may refuse to fund the shortfall and treat him as still owning those funds but that would be a problem of his own making, not one that falls on you.