Surviving spouses, surviving children and the reform of total intestacy law in England and Scotland: Past, present and future

Abstract

England and Scotland have very different legal systems in relation to succession generally and intestacy in particular. Nevertheless, they have faced similar problems and tensions when attempting to reform the law of intestacy. This article considers the basic division of an intestate estate between spouses and children (and other issue). It is argued that prior to the twentieth century intestacy law in both jurisdictions was underpinned by a dynastic model in which the estate was preserved for successive generations. However, in the twentieth century the interests of the spouse became the primary focus of intestacy distribution. Recommendations (by law commissions in both jurisdictions) for further reform of the law are marked by a further intensification of the rights of the spouse (potentially leading to a further decline in the entitlement of children and issue). The Commissions have not only jettisoned dynastic intestacy, but also the earlier framing of intestacy rules based on the examination of wills and the ‘presumed intention’ of the intestate. Instead, the Commissions have preferred to formulate rules which are generally supported by empirical evidence such as public opinion surveys; and tempered by the aims of simplicity and administrative efficiency. This article contends that in order to create a division of assets reflecting acceptable standards, the aim of modern intestacy legislation ought to be the distribution of assets to those classes of family members who are likely to be the most economically vulnerable (such as aged spouses, minors and disabled adults). In any event, the ageing population and the needs of surviving aged spouses are likely to have a significant impact upon the framing of intestacy law in the future.

‘Til death do us part’: surviving spouses, civil partners and provision on intestacy in Ireland

“…15 This trend serves to amplify the weaknesses of the current regime: the fractional share approach is especially harsh on surviving spouses or civil partners in lower value estates yet it is precisely in these situations that intestacy is more likely to arise. Legislative schemes for the distribution of an intestate estate across the common law world almost invariably place the surviving spouse, and increasingly civil partners or their equivalent, as the primary beneficiary (see Burns, 2013a). As in Ireland, where the deceased is survived by a spouse or civil partner but no issue, most jurisdictions ensure the entire estate goes to the surviving spouse.…”

Impact of the EU Succession Regulation on Statutory Inheritance

“…According to that Act (Art. 46) where a person dies in England & Wales leaving a surviving spouse, but no issue, parents, or siblings, the spouse or civil partner inherits the estate in its entirety 35 . Where there is a surviving spouse and issue, the spouse takes the personal chattels, plus the first £250,000 and a life interest in half of the remainder.…”

Distribution of intestate estates in non-traditional families

“…Notable exceptions include Kerridge (2015) and Kerridge (2016). See also Burns (2013b) which largely focused on the provision for surviving spouses.…”

“… 22. See Burns (2013b: 109–10); Reid (2008). Support for restrained provision might be especially strong in circumstances where accommodation for the surviving spouse is secure. …”

“… 23. Burns (2013b: 109) noted this was another example where a law commission was ‘highly selective when recommending that the results from surveys be implemented into law…’. …”