Life Assurance issues for Cohabiting Couples Issues on Separation / Divorce Caitriona Gaffney Irish Life
Introduction The trend for couples to co-habit rather than marry has become increasingly more common in Ireland. With the implementation of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 rights similar to those of a married couple have been conferred on registered Civil Partners and qualified cohabitants. Though it must be mentioned that the rights extended are different for both. The Finance ( No 3 ) Act 2011 made changes to our tax legislation which will benefit some of these couples..
Civil Partnership Act 2010 The Civil Partnership Act introduced and defined certain relationships Civil Partners same sex definition ( applies to same sex couples only!! ) Co Habitants same or opposite sex couples Qualified Co Habitant two years with children / 5 years otherwise but not if party to another relationship at the same time
Civil Partnership Act 2010 The Civil Partnership Act introduced and defined certain relationships Civil Partners same sex definition ( applies to same sex couples only!! ) Co Habitants same or opposite sex couples Qualified Co Habitant two years with children / 5 years otherwise but not if party to another relationship at the same time
Finance ( No 3 ) Act 2011 Legal Spouse Registered Civil Partner Qualified Co Habitants Succession Act Rights Automatic Right Yes Yes subject to children's needs No auto right can apply Inheritance Tax Unlimited Exemption Yes Yes No still strangers Financial Comp Entitlement to Yes within 12 Yes no time No Order apply months frame Pension Adjust Order Entitlement to apply Yes Yes Yes prove financial depend Capital Gains Tax Treated as one unit Yes Yes No
Of importance for us today. Succession Act changes Automatic rights for civil partners ( same sex couples ) but subject to children s needs, no automatic right for cohabitants but can apply Inheritance Tax Changes Unlimited spouse exemption now also applies to Civil Partners ( same sex couples ) Does NOT apply to cohabitants still strangers threshold of 15,075 ( 2014 )
Succession Act 1965 NO Will where a person dies "intestate" Spouse or Civil Partner and no children Spouse or Civil Partner and children Spouse or Civil Partner entitled to full estate Spouse or civil partner gets 2/3rds CP share subject to financial needs of any children being met 1/3 equally between children. No spouse or Civil Partner but children Estate is divided equally between children No spouse or Civil Partner and no children Parent(s) if living, otherwise brothers / sisters
Succession Act 1965 Will -a "testate" death (Entitlement regardless of provisions of will) Spouse or Civil Partner and no children Spouse or civil partner entitled to ½ estate Spouse or Civil Partner and children Spouse or civil partner entitled to 1/3 of estate CP share subject to financial needs of any children being met An individual can make a Will any way he wants, but the Succession Act gives a surviving spouse or civil partner certain legal rights regardless of the Will.
Succession Act Children Children have a legal right to a deceased parents estate if there is no Will in place But.where there is a Will. Children do not have a right to a particular share of the estate where their parent left a Will. However, Section 117 of the Succession Act gives a child the right to apply to the Court for a share of the estate under a Will if in the Court s opinion the testator has failed in his moral duty to make proper provision for the child in accordance with his means.
Succession Act Civil Partners / Co habitants It is worth mentioning that while this right of the child to apply to the Courts will not effect the portion of the estate to which a legal spouse has a statutory right, it could impact of the amount of the estate to which a registered civil partner is entitled. ( S86 of CPA introduces S117(3)(a) to Succession Act ) Also, while a qualified co habitant may apply for provision out of their deceased co habitants net estate within six months of the grant of representation, firstly it is not an automatic right, as in the case of a civil partner, and also they are only entitled to an amount after the spouse and civil partners rights have been satisfied.
Finance No 3 Act 2011 Capital Acquisitions Tax Civil Partners The spouse exemption from Inheritance and Gift Tax has been granted to registered civil partners same sex couples Qualified Cohabitants The exemption from capital acquisitions tax ( covering both gift and inheritance tax ) has not been extended to cohabiting couples. These couples are still treated as strangers with a lifetime threshold of 15,075 (2014) any excess will be taxed at 33% ( 2014 )
Capital Acquisitions Tax C.A.T. Inheritance Tax Gift Tax Benefits taken on a death Benefits taken otherwise than on a death Gift Tax = Same as Inheritance Tax
Liability to CAT 1. Either the disponer or the beneficiary resident or ordinarily resident. in the State World wide assets liable to Irish CAT 2. Neither Disponer nor beneficiary resident or ordinarily resident in the State Liability on Irish Assets only Potential liability to tax in more than one country, but credit or exemption potentially available.
Current Thresholds 225,000 - donee is child or minor child of deceased child 30,150 - donee is lineal ancestor or descendant, brother, sister or child of a brother or sister 15,075 - others
Aggregation Your threshold is not per gift or inheritance it s a lifetime threshold All gifts and inheritances received since 5/12/1991 added together within each Group Max tax free since 5/12/1991 from parents is 225,000, can receive a further 30,150 from other relatives and 15,075 from strangers. Total 270,225 if benefits from different groups
Tax rate Up to Threshold Nil Balance 33%
What assets are taken into account? Family Home Business Holiday Home Investments Life Assurance policy proceeds Pensions pre and post retirement Cash / Deposits Cars / Jewellery...everything!!!!
Spouse / Civil Partner Exemption Applies to legal spouses and registered civil partners only ( same sex couples ) not common law co habiting opposite sex situations Partners = Strangers amounts over 15,075 (currently) are taxed Divorce no longer legal spouses..though assets passing as a result of Separation Agreement or Divorce Decree are still subject to exemption
Life Assurance Issues for co habiting couples.. Life Assurance issues Ownership Structure Succession Taxation
Arranging Protection Single Life Own Life Life Assured = John Smith Proposer = John Smith Payer of Premiums = John Smith
Arranging Protection Single Life Own Life Ownership John owns and controls the policy during his lifetime Succession sum assured payable to John s estate on his death Will / Grant of Probate Succession Act / Letters of Admin Remember if no Will no co habitant entitlement Taxation taxable inheritance in hands of his beneficiaries if cohabiting partner receives 250,000 life cover she will lose 77,525 in Inheritance Tax!!
Calculation.. 250,000 from life assurance policy Less 15,075 strangers threshold Gives 234,925 taxable X 33% tax rate = 77,525 Inheritance Tax bill / loss of life cover benefit!!!
Arranging Protection Single Life Life of Another Life Assured = John Smith Proposer = Mary Murphy Payer of premiums = Mary Murphy
Arranging Protection Ownership Mary owns and controls the policy during her lifetime Succession sum assured payable to Mary on John s death No wait for Probate / Letters of Admin Money paid directly to Mary no Succession Act rules apply Taxation no inheritance tax as Mary paid the premium for the benefit she will receive. Beware however!! If the premium is paid from John s bank account Mary will lose 33% of the sum assured in Inheritance Tax as previous example or if from joint account she will lose 33% of half the sum assured!!
Arranging Protection Joint / Dual Owners Lives Assured = John Smith and Mary Murphy Proposers = John Smith and Mary Murphy Payer of premiums = John Smith and Mary Murphy joint account
Joint owners / Dual life benefit Ownership John and Mary own and control policy Succession on first death sum assured payable to surviving owner with no wait for Grant of Probate / Letters of Administration ownership of contract then passes to survivor and on second death the sum assured is payable to their estate there will be need for Grant of Probate Taxation On first death half the benefit taxable as recipient paid for half the benefit they will receive. ( Remember if premium paid from John s account Mary will lose 33% of the sum assured in Inheritance Tax ). On second death taxation depends on relationship between deceased policy owner and person receiving the sum assured i.e. children
Arranging Protection Trust Ownership Dual / Joint life Lives Assured = John Smith and Mary Murphy Trustees = John Smith and Mary Murphy Payer of premiums = John Smith and Mary Murphy joint account Beneficiaries =??
Trust Ownership Dual / Joint Ownership John and Mary own and control policy Succession on first death sum assured payable to survivor with no wait for Grant of Probate / Letters of Admin ownership will then pass to survivor and on second death proceeds thru Trust to Beneficiaries but no wait for Grant of Probate / Letters of Admin Taxation on any payout the tax will depend on relationship between payer of premium and recipient of benefit Can t be assigned for loan purposes!!
Arranging Protection issues Ownership Control Succession on death Benefit liable to Inheritance Tax Own Life Policy Holder Estate of policy holder 100% Life of Another Own Life in Trust Proposer Proposer Not liable (if Proposer paid premium) Trustee (Policy Beneficiary of Trust 100% Holder ) Joint Dual Joint Dual in Trust Joint Policy Holder Survivor 1 st death Joint Trustees(Policy Holders) Survivor 1 st death Survivor 1 st death Estate Survivor 2 nd death Survivor 1 st death Beneficiary of trust on 2 nd death 100% (50% if joint paid) 100% 100% (50% if joint paid) 100% Tax payable on 50%/100% of benefit depends on relationship between beneficiary (surviving owner, estate or beneficiary of trust) and disponer(who paid premiums)
Rules of Thumb
Family Protection Recommendation Both non married partners earning Tax efficient financial protection for Mary on John s death and vice versa. Two separate Life of Another contracts e.g. Mary insures John, John insures Mary Plan owner pays the premium Ownership / Control Plan owner controls policy Succession Benefits directly to plan owner no Succession Act worries!! Inheritance Tax No Inheritance Tax if plan owner paid premiums
Family Protection Recommendation Both earning Separate Single Life policies not practical Dual / Joint policies jointly pay premiums Control joint policy gives joint control total control to survivor on 1st death Succession Survivor on first death Estate of last survivor on second death. Inheritance Tax 50% of benefit liable to tax for joint owner 100% liable on second death
Family Protection Recommendation Both earning Separate Single Life policies not practical Dual / Joint policies jointly pay premiums Options.. Increase cover to allow for Inheritance Tax liability on sum assured Separate S.72 policy to provide for inheritance tax liability on this and other assets
Family Protection Recommendation Only one earning John (say) Use the Small Gifts Exemption Gift 3,000 pa to non earning partner Use to pay premium on life of another or 50% of joint/dual plan Remember Inheritance Tax payable on 50%/100% of benefit depends on relationship between beneficiary (surviving owner, estate or beneficiary of trust) and disponer (payer of premiums) So, if Mary can now afford to pay the premium there will be no loss of 77,525 life cover!!!
Property Ownership Joint Tenants If the property is held as joint tenants, the presumption is that the whole property passes to the surviving owner automatically on the death of one of the owners. Tenants in common If the property is held as tenants in common, the law provides that each of the owners holds a separate and distinct share from the other and accordingly the surviving owner does not automatically inherit the share of the other joint owner who has died. The share of the deceased, in this case, passes to the beneficiary named in the deceased's Will, if any, or under the rules of intestacy if there is no Will.
Dwelling House Exemption Where someone inherits their family home they do not have to pay tax on the value of that home and it will not impact on their group threshold for aggregation purposes subject to certain conditions : Recipient continually occupied as only or main residence for 3 years prior to transfer Recipient has no interest in any other residential property includes foreign property!! Recipient continues to occupy as only or main residence for 6 years after the transfer Rules different for gifts!!!!
Mortgage Protection John and Mary buy a house in joint names (Value 300k) Contribute equally to deposit, mortgage repayment and joint mortgage protection policy John dies in first 3 years Mortgage cleared by Mortgage Protection Policy. Mary inherits 50% of property (assuming held as joint tenants) Threshold 15,075, tax at 33% on 134,925 = 44,525 on inheritance of half the house
Mortgage Protection John and Mary buy a house in joint names (Value 300k) Contribute equally to deposit, mortgage repayment and joint mortgage protection policy Options Increase mortgage protection by 45,000 (poss. Tax @ 33% on 23,000 = 7,600) Separate Life of Another policy for 45,000? After 3 years Dwelling House exemption may apply but if there is other property?? ( conditions for Family Home Relief )
Mortgage Protection Donal lives with Maeve, in her house valued at 300k. Maeve paid deposit / mortgage repayment and mortgage protection policy. Maeve dies in first 3 years Mortgage cleared by Mortgage Protection Policy. Donal inherits 100% of property (under Maeve s Will). Threshold 15,075, tax at 33% on 284,925 = 94,025. Options Increase mortgage protection by 95,000? Separate Section 72 policy? 3 year risk / other property?
Other Assets Inheritance Tax Mortgage Protection solutions assumes no other assets If other assets Maeve effects S.72 Inheritance Tax planning contract Donal beneficiary Donal effects S.72 Inheritance Tax planning contract Maeve beneficiary OR Donal effects Life of Another policy on Maeve Maeve effects Life of Another policy on Donal Assumes both have income to pay for S.72. or Life Of Another contract
Cohabiting Couple Example Mary and John have lived together for 10 years They never married They have two children Wills leaving everything to each other. Assets are as follows : Family home jointly owned 450,000 Life Assurance dual life 500,000 John s company p.t.a. 240,000 Apartment in Turkey 80,000 Various investments 50,000
Cohabiting Couple Example If John dies Mary inherits as follows: Family Home 225,000 Life Assurance 250,000 John s Pension 240,000 Apartment in Turkey 40,000 Savings / investments 25,000 Total 780,000 Less threshold 15,075 Taxable at 33% 764,925 If Mary dies John inherits as follows: Family Home 225,000 Life Assurance 250,000 Apartment in Turkey 40,000 Savings / investments 25,000 Total 540,000 Less threshold 15,075 Taxable at 33% 524,925 Mary s tax bill : 252,425 John s tax bill : 173,225
Life Assurance issues for Co habiting Couples 1. Make a Will especially important for cohabitants no automatic rights 2. What cover is required? and. on whom? 3. Who is to benefit? Can beneficiary (partner?) pay all or part of premium? 4. Mortgage Protection 3 year / other property risk 5. Inheritance Tax liability Increase cover or Separate S.72 for inheritance tax for all assets 6. Non earners Small Gifts Exemption Gift 3,000 pa to non earning partner Use to pay premium on life of another or 50% of joint/dual plan
Summary important for you Legal Spouse Registered Civil Qualified Partner Co Habitants ( Same sex ) Succession Act Yes Yes subject to No auto right Automatic Right children s needs being met can apply Inheritance Tax Unlimited Exemption Yes Yes No still strangers Excess above 15,075 taxable
Life Assurance Issues On Separation / Divorce Amending existing contracts Life Assurance for Maintenance Payments Other things to think about..
On Separation / Divorce Amending existing contracts Two separate things to think about Benefits Can alterations be made to the benefits on the existing contracts? Flexibility of the contract / conversion options Ownership of the contract Who are the benefits to be paid to? Change the ownership where necessary using a Deed of Assignment
On Separation / Divorce Maintenance Payments How you set up the contract will depend on two things; Who needs to have ownership of, and control over, the contract during the term of the contract, and Who needs to receive the death benefit on the death of the life assured / who is to be the beneficiary of the sum assured on the death of the life assured.
Maintenance Payments Let s take an example: Conor has separated from his wife Julie. As part of their Separation Agreement he has been instructed to put cover in place to provide maintenance payments for their two children, Emma and Sophie, in the event that he dies before they finish full time education.
Maintenance Payments Own life in Trust Conor effects a single life term assurance protection plan in Trust for his daughters, Emma and Sophie. Conor pays the premium on the contract. Ownership / Control Conor owns and controls the contract during his lifetime. Any alterations must be authorised by Conor and notification of any unpaid premiums will be issued to Conor. Who receives the benefit On Connor s death the sum assured is paid to the nominated Trustee, for the benefit of Emma and Sophie as beneficiaries under the Trust. As Conor paid the premium on the contract the girls will be subject to Inheritance Tax on the sum assured. N B : A contract issued in Trust cannot be assigned to a bank as security for a loan.
Maintenance Payments Life of Another Conor is the life assured under a single life term assurance plan. Julie is the proposer / policy owner. Conor pays the premium on the contract. Ownership / Control Julie owns and controls the contract. Any alterations must be authorised by Julie and notification of any unpaid premiums will be issued to Julie. Who receives the benefit On Connor s death the sum assured is paid to Julie directly as she is the policy owner. She can then use the sum assured to provide for her daughters. Because the policy was set up in line with a Separation Agreement, Julie will not be subject to Inheritance Tax on the policy proceeds.
Maintenance Payments Options Own Life In Trust Life of Another Structure will depend on Separation Agreement / Divorce Decree
On Separation / Divorce Other things to think about Financial Compensation Orders Effect / Assign / Pay premiums on existing policy Cease on remarriage / becoming civil partner / death of person who sought Order Pension Adjustment Orders Contingent Benefits remember ceases on leaving employment!!! Retirement Benefits different rules for CP s and co habitants
On Separation / Divorce Amending existing contracts Life Assurance for Maintenance Payments Other things to think about.. Important to obtain Legal Advice
Agenda for today Life Assurance issues for Cohabiting Couples Issues on Separation / Divorce. Any Questions?
Thank you Caitriona Gaffney Irish Life