Protecting your legacy: pre-nuptial agreement or Will?

The farmer in question was happily married and had two children. His farm had been in his family for four generations. When he died, he had not made a Will and as a matter of course when no Will is made, everything in his estate passed to his wife.

Two years after his death she remarried. This marriage lasted for approximately ten years and then her second husband left her. He had never been involved with or worked on the farm. He had however, invested heavily in the matrimonial home paying for an extension to accommodate the visiting children from his first marriage. In the divorce he claimed one half of the value of the farmhouse and the land. This would have split up the farm and diminished the farmer’s children's legacy.

This situation could have been avoided had the farmer made a Will making it clear that he wished to leave the farmhouse to his wife to live in for life with a suitable legacy but that the actual farm and land should go to the children. In this particular case the wife was able, with the assistance of the family, to raise a lump sum to pay out her second husband. However, it placed her in grave financial difficulties to do so.

Pre-nuptial agreements

A similar problem can be caused by not having a pre-nuptial agreement. I have seen many cases these days where farmers are marrying outside of farming families.

‘Back in the day’ traditionally farmers’ wives tended to come from farming families which meant they understood the lifestyle of being a farmer’s wife: the long hours that farmers need to work, the lack of holidays and the isolation from neighbours. While these factors did not always apply, many of them can still apply today and can contribute the break up of these relationships.

Particularly where a farm has been in a family for several generations it is very important to consider setting up a pre-nuptial agreement to ensure that in a divorce the ‘outside party’ does not simply get a share of the farm by virtue of marriage.

Clearly the position of any potential or actual children needs to be carefully considered but where one party is bringing in a farm which may, particularly given the recent rise in agricultural land values, have a significant capital value, this ought to be protected to keep the farm in the family.

This is particularly important at the moment because farmers are now often asset rich but cash poor. Having been through the recession and with falling prices of milk, wheat and other commodities, farmers often have great value in their land but little or no income and cash flow.

If there is no pre-nuptial agreement and a marriage breaks up and the outside party makes a claim, quite often part, if not all, of the farm has to be sold to settle that claim.