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How the surviving spouse is treated in our legal system

Date:26 JUL 2017
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Diccon Mellors
Hugh James

Family Justice Reformed (second edition: June 2017) contains detailed commentary on the Single Family Court and the Children and Families Act 2014, Pts 1 and 2 (which deal with family justice), including clear and comprehensive guidance on the underlying procedural regime and the rationale for the reforms.

I expect I am not alone but until recently I was unaware of International Widows’ Day. This annual initiative seeks to raise awareness of the situation faced by countless people worldwide who can face huge financial uncertainty (most often women) upon the death of their spouse, as well as what the UN describes as 'denial of inheritance and land rights… and other forms of widow abuse'.

This made me think about how our own legal system treats a widow or widower on the death of their loved one, and whether they are fairly treated by the law at such a difficult time.

The law treats married couples and couples in a civil partnership equally. Any reference below to a ‘spouse’ therefore can be read to include people who are civilly partnered.

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Joint assets

The first way in which a spouse will often benefit from their husband’s, wife’s, or civil partner’s estate is under the laws of ‘survivorship’. Married or civilly partnered couples will often share joint bank accounts or own their home jointly. With joint assets such as these it is presumed that, on the death of the first owner, the whole asset will pass to the survivor. Whilst the rules of survivorship are not specifically designed for spouses, it is most commonly couples who will own such joint assets and therefore benefit from this provision.

The rules on intestacy

When somebody dies without a will (a situation known as ‘intestacy’), or when their will does not dispose of their whole estate, legislation will determine what happens to their assets and who is entitled to administer their affairs.

A surviving spouse is the first person entitled to administer the deceased’s estate or apply for a grant of representation. This means that that they will maintain control over the deceased’s assets, can ensure that their affairs are wound up correctly, and that the assets go to the right people.

Where the deceased person does not have any children their surviving spouse can expect to inherit the whole estate irrespective of its value or what the assets may be.

If the deceased person does leave children behind, the spouse will not necessarily inherit the whole estate, but can expect to receive over half of its value. They are entitled to receive all the deceased’s personal and household items, the first £250,000 of their estate, and one half of whatever is left after that.

Inheritance tax

Another way in which the law protects the financial interests of a widow or widower is through the spouse exemption to inheritance tax.

Any estate over the £325,000 ‘nil rate band’, is potentially liable to incur an inheritance tax bill, which can be quite considerable.

The Inheritance Tax Act 1984, however, states that any money or other property inherited by a surviving spouse is free from any inheritance tax.

Further to this, the surviving spouse will also inherit any nil rate band that has not been used. This is called the ‘transferable nil rate band’. They may therefore end up entitled to a nil rate band of up to £650,000 for their own estate when the time comes.

Claiming against the estate

What if the will or the rules of Intestacy do not leave a widow or widower with enough? The Inheritance (Provision for Family and Dependants) Act 1975 lists the people who are entitled to make a case that they should receive more, and apply to court to vary the distribution from the estate so that they have reasonable provision. This list includes husbands and wives of the deceased.

The United Nations states that:

'The abuse of widows and their children constitutes one of the most serious violations of human rights and obstacles to development today. Millions of the world’s widows endure extreme poverty… and discrimination in law and custom.'

Being bereaved is difficult enough without added worries of not having enough money to live on, or having to leave your home. The pain of bereavement cannot be reduced by the laws of your country, but the laws of England and Wales do at least try to accommodate a surviving husband, wife, or civil partner and support them when they need it most. A spouse will benefit from significant tax advantages, and can expect to receive most (if not all) of the estate in the event of intestacy. Should the worst happen and they not be given reasonable provision in a will, they are always entitled to put their case before a court and challenge the distribution of the estate’s assets.

This article was originally published by Hugh James