IHTM12123 - Distribution under intestacy (E & W): other factors affecting surviving spouse's or civil partner's entitlement

You will need to bear the following in mind when considering what a surviving spouse or civil partner ( IHTM11032) ( IHTM12121) is entitled to under intestacy.

• the intestate’s spouse or civil partner has to survive the intestate in order to take any benefit from his estate. For deaths before 1 January 1996 it was immaterial that the spouse survived by only a very short period. For deaths on or after 1 January 1996 a surviving spouse or civil partner is only entitled on intestacy if he or she has survived the deceased by at least 28 days. (Law Reform (Succession) Act 1995.)
• in the case of a husband and wife or civil partners who both die in circumstances which render it uncertain who died first the rule - known as commorientes ( IHTM12191) - that the younger is deemed to have survived the elder does not apply. Instead it is presumed that each spouse or civil partner predeceased the other with the result that the right of the surviving spouse or civil partner are ignored when distributing under the intestacy rules.
• where a decree of judicial separation or order for the separation of civil partners under s.37(1) Civil Partnership Act 2004 has been made (not merely a separation agreement) then for the purpose of administering the estate the spouse or civil partner is treated as having predeceased the intestate.
• divorced spouses or former civil partners take no interest in the estate of their former spouses or civil partners.
• as an alternative to a life interest in the residue of the estate, the surviving spouse or civil partner has a right to a capital sum in lieu. This under S47 Administration of Estates Act 1925 will have the effect of reducing spouse or civil partner relief.
• a surviving spouse or civil partner has a right to acquire the residence which he occupied when the intestate died, as part of his or her benefit (S5 Intestates Estate Act 1952).