# Who gets estate when separated spouse dies?



## rogeroleary (22 Sep 2010)

I know of a family where the couple seperated and one spouse moved out many years ago. The other parent has now died and the spouse who moved out is moving back in. It would appear that they are claiming the house is theirs.

Children are all young adults (over 21) at this stage and as the split would have been very acrimonious I would be very surprised if the parent that passed away would have wanted the surviving spouse to receive anything more that their minimal entitlement.

I thought I had heard before that the estate would be shared 2/3rds in favour of the spouse and 1/3 in favour of children? Any advice would be much appreciated.

Roger


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## huskerdu (22 Sep 2010)

THe general situation is that if there is no will, the estate is split as you say,
2/3rds in favour of the spouse and 1/3 in favour of children

However, if the house was jointly owned, then it does not form part of the estate, and automatically belongs to the surviving joint owner. This may be the situation in this case.


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## Bright (22 Sep 2010)

Like Huskerdu says, it depends if the house was in joint names or not, and also, if the split was acrimonious, maybe they had a formal separation agreement (most contain waiving your succession rights) or Judicial Seperation or Divorce (usually same re waiving succession rights). 

However, I would advise your friends to go to a solicitor in relation to this, especially if there is going to be inheritance issues.  Most claims must be made within 6 months of grant of probate (as far as I recall my succession law is a bit rusty!!)


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## Bright (22 Sep 2010)

huskerdu said:


> However, if the house was jointly owned, then it does not form part of the estate, and automatically belongs to the surviving joint owner.


 

Not entirely true - it depends on how the property was jointly owned, whether tenants in common or a joint tenancy.

A joint tenancy is where a property is owned collectively, and is not split up into separate shares. If one of the joint tenants dies, the other surviving Joint Tenant(s) take the ownership of the property automatically by way of survivorship. This type of ownership is most commonly held between husband and wife.

Tenancy in common on the other hand involves a division of the ownership of the property into separate and distinct shares. If one of the tenants in common dies, his share remains intact and passes under the terms of his will and not by way of survivorship. This type of ownership is most commonly found in a business context.


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## huskerdu (23 Sep 2010)

Bright said:


> huskerdu said:
> 
> 
> > However, if the house was jointly owned, then it does not form part of the estate, and automatically belongs to the surviving joint owner. QUOTE]
> ...


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## Bright (24 Sep 2010)

huskerdu said:


> Bright said:
> 
> 
> > Thank you for pointing this out. However, it would be very rare for a married couple to buy a house as tenants in common, so its quite unlikely.
> ...


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## rogeroleary (24 Sep 2010)

huskerdu said:


> THe general situation is that if there is no will, the estate is split as you say,
> 2/3rds in favour of the spouse and 1/3 in favour of children
> 
> However, if the house was jointly owned, then it does not form part of the estate, and automatically belongs to the surviving joint owner. This may be the situation in this case.


 
Thank you everyone for the feedback. I would imagine the house certainly jointly owned. Just wondering if, should the spouse that passed away have wanted to provide for the children, could they have willed their portion to the kids? I think that, if the parent who died had had the option they would have sold the house to ensure that the kids had something in trust for the kids.

Roger


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## huskerdu (25 Sep 2010)

rogeroleary said:


> Thank you everyone for the feedback. I would imagine the house certainly jointly owned. Just wondering if, should the spouse that passed away have wanted to provide for the children, could they have willed their portion to the kids? I think that, if the parent who died had had the option they would have sold the house to ensure that the kids had something in trust for the kids.
> 
> Roger



No, a jointly owned asset is not part of the estate. The will does not cover this asset. It automatically passes to the other joint owner, even if the will states that  the entire estate goes to another person. 

The spouse could not sell a jointly owned asset without the other owner agreeing, unless they got a legal separation that changed the ownership of the house to allow them to do this.


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