Divorce & Succession

Spouses’ Rights

The Succession Act confers important rights on spouses. Succession rights can be renounced voluntarily by either or both spouses or civil partners at any time. This may be done in a separation agreement.

In the case of a complete or partial intestacy, the Succession Act provides that the spouse takes all (or the relevant part of) the net assets if there are no children and two-thirds of the assets if there are children.

Where there is a will, the Succession Act provides that a spouse is entitled to claim a minimum legal right share. This is one-third where there are children and one-half when there are no children.

Effect of Divorce

In the case of judicial separation, the party continues to be the spouse.  In granting a decree of judicial separation, a court can extinguish a spouse’s succession rights if it is satisfied that adequate provision exists for the spouse whose rights are being extinguished.

Once a decree of divorce/dissolution is granted, the parties are no longer married or in a civil partnership, and succession rights are automatically extinguished. However, the divorce legislation allows courts to make provision for divorced spouse out of the estate of the deceased spouse.

Debarring the Right

An application may be made during lifetime by either spouse, debarring the right of the other spouse to make the above application on death.  It is considered whether proper provision has been otherwise made.

The right to make an application can be made at any time prior by the spouse whose assets are concerned. It is often the case that an order is made at the time of divorce or dissolution, which bars such an application from being made.

Application on Death

Either party may, on the death of the other make an application for a share in the other’s estate (if the rights were not barred). This may be made within six months of the date of the grant of Probate.

The application must be made on notice to be surviving spouse of any of the deceased and such other persons as the court may direct. They may make representations which must be taken into account.

Provision by Court

The court may make such provision for the surviving spouse as it considers appropriate, having regard to the rights of other persons having an interest. It must be satisfied that proper provision was not made during the lifetime of the spouse by way of ancillary orders in the context of the divorce.

The court may not make an order in favour of the spouse who has remarried after the divorce. The court must have regard to all the circumstances, including lump sums previously paid, property adjustment orders, as well as bequests made in the deceased’s will.

The court may not make an order under the Divorce Act exceeding the share to which the applicant would have been entitled under the Succession Act if the parties had remained married.

Personal Representative

There is a duty on the personal representative of the deceased spouse to make reasonable attempts to ensure that notice of death is brought to the attention of the other spouse. The personal representative must not distribute the estate until the matter is determined by the court if an application is made within the requisite period.

The former spouse must notify the personal representative within a month of notification of the intention to apply to court, if this is applicable or whether there is an existing application or whether any other order has been made by the court. If the personal representative is not notified within one month, he or she may distribute the assets to the persons entitled. No liability arises if no notice of the application is given.

The right of the spouse to follow the assets by way of tracing them into the hands of a beneficiary is preserved. If, however, they have been passed on to a bona fide purchaser for consideration, the right to trace will cease. See generally the sections on tracing.