Further Reading:
Farang Thai Spouse’s Property Rights
A Farang married to a Thai lady wrote "We would like to buy a piece of land/property and I am quite prepared to "gift" her the necessary amount of cash to make the purchase. However, she and I are concerned that, in the event of the her dying before me, I shall have no rights of abode and could face a takeover by her relatives."
I have consulted a Thai lawyer who assures me he can draw up a simple contract which would entitle me, in the event of her premature death, to sole occupancy for as long as I wish and I will have the option of selling the property at any time during the future - providing the sale is completed within three months. The idea would be for me to get my money back and pass on any surplus to my stepson, which I am more than happy to do. It all sounds rather odd to me, but since farangs who marry Thais apparently have no property rights on divorce or death of their spouse, it seems to be a case of Hobson's choice. Or is it?
The recent (1999) ministerial regulation allowing Thai national's married to foreigners (long disbarred from directly acquiring property) the right to purchase property leaves (from a foreigners perspective) as much unresolved as it corrected.
Thai's married to foreigners were previously disbarred from acquiring land (save by last will and testament) since such property would be deemed a common property of the marriage and in the event of the dissolution of the marriage could potentially fall (in part at least) into foreign hands, which, as you know, is not allowed by the Thai Land Code - so to save a potential problem, the law removed the right of Thai spouses of foreigners to purchase land. This restriction was quite correctly deemed an infringement of the Civil rights of Thai's married to foreigners and long subject to appeal for amendment.
The recent "neat" solution which re-instated the right for Thai's married to foreigners to buy land was achieved in essence by establishing a basis for the two parties (one foreign) to a marriage to exclude some of their assets from the common property of that marriage. In the land purchase situation, this is achieved by the foreign spouse signing a declaration that funds used for purchase of property belonged to the Thai spouse prior to the marriage and are (in effect) beyond his claim.
As "Farang" correctly surmises, this leaves you rather exposed if your Thai spouse should die prematurely or the marriage breaks down. To overcome this situation, leaving goodwill and family trust aside, you will find that your situation is really no different to that of a Foreigner who is not married to a Thai.
That however does not leave you unprotected. I don't know what contract your lawyer has in mind (his comments about 3 months to solve the problem after death of your spouse suggest that he may be on the wrong track), but as a foreigner you do have several very legal registrable and enforceable rights over property in Thailand.
Specifically, as a foreigner, you can lease land for up to 30 years and have renewal options against that lease and you can directly own buildings and other improvements that may exist or be constructed upon land.
To secure your interests against questionable future motives of Thai relatives, I suggest that firstly you secure and register a secure lease (without registration - which will cost you a little in fees - you lease security is limited to three years) and perhaps include a purchase option agreement against the land. I would also suggest that you take steps to place the ownership of the house in your own name or at least be sure that your wife has left the house (as distinct from the land - which you can't own directly) to you under her last will, and testament.
An alternative approach is to place the land / property, which for many may be the principle common assets of your marriage, into Thai corporate ownership, with each of you taking shares in a company which in effect owns the common property of your marriage. This is a more complex structure than a lease and requires ongoing reporting procedures, but may offer other benefits in terms of establishing a local presence (work permits, right to car ownership etc.)
As with tax and estate planning in the west, there is nothing simple about the procedures that I have outlined above. The issues need to be discussed in depth with qualified professionals and a solution tailored for your own specific financial and marital needs. With due foresight and attention a workable and secure solution is not difficult to achieve