In general, you are free to dispose of your belongings or estate as you wish, but your will is subject to certain rights of spouses/civil partners and other more limited rights of children. These rights are set out below.
Rights of a spouse or civil partner
If you have left a will, and your spouse/civil partner has never renounced or given up his/her rights to your estate, and is not “unworthy to succeed” in legal terms, then that spouse/civil partner is entitled to what is called a “legal right share” of your estate. This legal right share is:
- One-half of your estate if you do not have children
- One-third of your estate if you do have children
Your spouse/civil partner does not have to go to court to get this share, as any executor is obliged to grant this share where applicable. You can also make a bequest in your will that increases your spouse’s/civil partner’s legal right share, although if you do not specify that this gift is meant to be in addition to his/her legal right share, the executor may consider it part of that share and not an extra element to it. Your spouse/civil partner can choose to take either the assets specified under the will or his/her legal right share. The executors must inform your spouse/civil partner in writing of his or her right to choose between these two options and your spouse/civil partner must exercise this right within 6 months of receipt of notification or within 12 months of the taking out of the Grant of Representation.
Renouncing or losing rights under a will
It is possible for a spouse/civil partner to renounce his/her rights to the legal right share. This can form part of an agreement prior to marriage/civil partnership, for example, in the case of a second marriage, or the spouse/civil partner may set aside his or her rights in order to favour any children. However, any such renunciation may be ignored in certain circumstances, for example, if there is evidence of undue influence or evidence that the spouse/civil partner did not understand what he/she was doing or did not have independent legal advice.
If a couple is separated, a renunciation of each other’s right to the legal right share is usually included in a separation agreement. Divorce or dissolution of a civil partnership, however, automatically ends succession rights.
Cohabiting partners have no automatic legal right to each other’s estates, although under the redress scheme for cohabiting couples introduced by the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 a qualified cohabitant may apply for provision to be made from the estate of a deceased cohabitant. Cohabiting partners can make wills that favour each other. These wills, however, cannot cancel out the legal rights of a spouse/civil partner if someone is separated but not divorced or their civil partnership dissolved.
Being judged “unworthy to succeed” is relatively rare, and would arise, for example, if the surviving spouse/civil partner had murdered or committed certain other serious crimes against the deceased. It could also apply if the spouse/civil partner had deserted the deceased for at least two years before death.
Rights of children under a will
Unlike a spouse/civil partner, children do not have any absolute right to inherit their parent’s estate if the parent has made a will. Children born inside or outside marriage and adopted children all have the same rights and there are no age restrictions.
However, a child may make an application to court if he/she feels that he/she has not been adequately provided for.
By way of summary of Section 117 of the Succession Act provides that a child, including an adult child, of a deceased parent who has made a will may apply to Court for a declaration that the parent failed in his or her “moral duty” to make proper provision for the child in accordance with the parent’s means during the parent’s lifetime whether in the parent’s will or otherwise. If the Court agrees that the parent failed to comply with the duty to make proper provision for the child, it may make an Order
that such provision as is considered just be made for the child out of the deceased parent’s Estate
It is important to seek legal advice before making such an application. An application must be made within 6 months of the taking out of a Grant of Representation. The court then has to decide if the parent has failed in his/her duty to the child in accordance with the needs of that child. Each case is considered individually, but it is important to remember that the legal right share of the spouse cannot be infringed in order to give the child a greater share of the estate. It can, however, reduce the entitlement of a civil partner.
The family/shared home
The surviving spouse/civil partner may require that the family/shared home be given to him/her in satisfaction of his/her legal right share, although if the house is worth more than the legal right share, the spouse/civil partner may have to pay the difference into the deceased’s estate. A court may decide that this sum does not have to be paid if it would cause undue hardship to the spouse/civil partner or dependent children.
Giving away property in order to disinherit
If a court finds that the deceased person gave away property before he/she died with the intention of defeating the interest of or unfairly reducing the legal right share of a spouse/civil partner or child, a court order may be issued to the person who received the property, making that person a debtor of the estate, and requiring them to pay back an amount to the estate.