If your husband or wife dies without having made a valid Will you as the surviving spouse will automatically inherit their estate, right?
The answer is ‘it depends’.
If there are no surviving children (or grandchildren by substitution of any who have already died) then yes, the surviving spouse will inherit the deceased spouse’s estate in its entirety but not otherwise.
If there are surviving children, the surviving spouse must share the inheritance with them.
This can lead to some tough situations, particularly where assets will have to be sold in order to raise enough cash to meet the children’s entitlements.
Case Study – Unexpected death of a husband who did not leave a Will
This very situation arose in a case involving the unexpected death of a husband who left a wife and a 12-year-old son surviving him. The husband died ‘intestate’ (i.e. without leaving a Will). According to the laws of intestacy as laid down in the Succession Act 1981, the husband’s estate was to be divided between the wife and the son. The matrimonial home was held solely by the husband at the date of his death and thus formed part of his estate. In fact, that was the only asset of his estate except for a small amount of cash.
The result was that the wife was forced by law to sell the home in order to meet the son’s entitlement under his late father’s estate. Another unwelcome feature of the situation was that according to law, the son would be entitled to receive his money at the age of 18 years to do with as he wished.
It is imperative that everyone, and particularly married couples, people in relationships and those with dependants, make the time and effort to put in place a properly drawn Will. Without a Will, your wishes may not be met, and adequate provision for those loved ones and dependants may be found wanting.
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