“With all my worldly goods I thee endow”, it’s one of the basic assumptions of a marriage (or civil partnership). The spouse/civil partner (and any children born of the union) have second claim on a deceased person’s estate after any existing debts have been repaid (HMRC has the first). Of course, rights in law only have any real meaning if they are actually enforceable. Fortunately, in the UK they are. Here is a brief rundown of some key points of law in England and Wales with regard to the status of surviving spouses and civil partners.
Legal wills are usually respected but can be challenged
There are basically six grounds for contesting a will:
- The law is illegal (fraudulent, forged…)
- The execution of a will is invalid (basically it fails to meet the legal requirements of a will)
- The person making the will lacked testamentary capacity (the individual lacks the mental awareness to make a will)
- Lack of knowledge and approval (the individual was unaware of the contents of the will and failed to approve them)
- Undue influence (the individual was pressurised into making certain provisions in their will)
- Rectification and construction (essentially there is an error in a will or it is unclear)
In addition to this, the Inheritance (Provision for Family and Dependents) Act 1975 makes it possible for widow(er)s to request a court to increase the provision made for them in a will, on the grounds that it is insufficient. For further information read Contesting a will.
The laws on intestacy favour spouses
If a person dies intestate (without a will), the widow(er) generally has first refusal when it comes to accepting the responsibility for winding up the estate appropriately. This puts them very much in the driving seat when it comes to settling the deceased’s affairs. If the deceased died without children (from any relationship), the surviving spouse will usually inherit the whole, net, estate. If the deceased had any children then they would also have a claim, which would pass to their descendants if the children predeceased their parents. Even when there are children, the widow(er) can still expect to receive the lion’s share of the estate. In addition to retaining household items, they will receive the deceased’s personal items, the first £250,000 of the value of the estate and half of anything left over after that. For further information read Intestacy rules.
Any assets left to a widow(er) are excluded from the value of the estate for the purpose of inheritance tax calculation. What is more, they also inherit their partner’s nil rate allowance as a percentage of the total. At current time, the nil rate band is £325,000. If the entire estate passes to the widow(er), they will inherit 100% of their partner’s nil rate band and hence if the nil rate band is increased in the future, say to £350,000, the surviving partner will be able to leave £350,000 of assets free of inheritance tax on behalf of their partner, as well as having their own nil rate allowance. For further information read Inheritance tax.
K J Smith Solicitors are specialists in family law, experienced in all matters relating to divorce, civil partnerships, cohabitation disputes and collaborative law.
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