Is A Dying Spouse Entitled To Leave 50% Of Everything To Whoever She Wants

[RATTER15]

Generally speaking, on divorce, a spouse is usually entitled to 50% of everything.

Does this also apply to a dying spouse, the couple in question are quite wealthy, owning various properties and businesses.

I know it isn't a "black and white" situation, I'm just curious, so generalising is fine.

[Old_Geezer]

As it is in Chatterbank I'll guess that being close to death doesn't change anything ?

[Barmaid]

If she lives in England and Wales yes because we have complete testamentary freedom here (unlike Scotland and some European countries where there is forced heirship).

However, the disinherited spouse may decide that the Will as drafted does not make "reasonable financial provision" for him and may make a claim for such provision under the Inheritance (Provision for Family and Dependants) Act 1975. As a spouse, the claim is not just for maintenance as it is with other categories of claimant but on a higher standard.

The deemed divorce test is one of the factors that is taken into account in a 75 Act claim. For this test the Court must look at what the situation would have been if the marriage had ended in divorce rather than in death. Of course, it is a difficult test to apply because in divorce there are two people's needs requiring to be met, but on death only one person. The deemed divorce test does not provide a starting point nor a benchmark and it is often irrelevant in big money cases, small money cases, unusual asset cases and inherited wealth cases.

As to whether the spouse's claim would be successful it is impossible to say - the Court looks at all the factors in the Act and it also depends on who the beneficiaries are (eg a wealthy beneficiary or a charity will have no "needs based" defence).

[RATTER15]

Thanks Barmaid, I think you have generally answered my question.

[Buenchico]

One additional point might be relevant here:

If the couple own their properties as 'tenants in common' then each of them owns a distinct share in each property and is free to leave it to whomever they like.

However if they own their properties as 'joint tenants' then neither of them owns a distinct share in of any property. It's their 'partnership' which owns the whole of each property. When one of those partners dies, the whole of each property will automatically belong to the other partner. Anything in a will which sought to achieve any other outcome would be invalid (because nobody can bequeath something which they don't actually own).

https://www.gov.uk/joint-property-ownership/overview

[RATTER15]

Thanks Chris!

[Old_Geezer]

I'm unsure why a dieing spouse would be enthusiastic to get divorced.

[RATTER15]

OG, I never said they were getting a divorce, the chances are that she won't be around in a week, it will be a great loss, she is such a lovely lady.

[woofgang]

having just read this.....she can only will what she owns.....I mean there are loads of things in a marriage that are neither “yours” not “mine” and when a couple are divorced then those things are divided out......I mean say for example the couple were given a valuable painting or a piece of silver as a gift to the couple......surely she wouldn’t be entitled to leave things like that in her will?

[RATTER15]

I was thinking more along the lines of the multiple properties they own and their business, could a % of the business be passed over in a will.

[woofgang]

well yes if its in her name.