In general, you are free to dispose of your belongings or estate as you wish, but your will is subject to certain rights of spouses/civil partners and other more limited rights of children.
Rights of a spouse or civil partner
If you have left a will, and your spouse/civil partner has never renounced or given up his/her rights to your estate, and is not "unworthy to succeed" in legal terms, then that spouse/civil partner is entitled to what is called a "legal right share" of your estate. This legal right share is:
- One-half of your estate if you do not have children
- One-third of your estate if you do have children
Renouncing or losing rights under a Will
It is possible for a spouse/civil partner to renounce his/her rights to the legal right share. This can form part of an agreement prior to marriage/civil partnership, for example, in the case of a second marriage, or the spouse/civil partner may set aside his or her rights in order to favour any children. However, any such renunciation may be ignored in certain circumstances, for example, if there is evidence of undue influence or evidence that the spouse/civil partner did not understand what he/she was doing or did not have independent legal advice.
If a couple is separated, a renunciation of each other's right to the legal right share is usually included in a separation agreement. Divorce or dissolution of a civil partnership, however, automatically ends succession rights.
Cohabiting partners have no automatic legal right to each other's estates, although under the redress scheme for cohabiting couples introduced by the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 a qualified cohabitant may apply for provision to be made from the estate of a deceased cohabitant. Cohabiting partners can make wills that favour each other. These wills, however, cannot cancel out the legal rights of a spouse/civil partner if someone is separated but not divorced or their civil partnership dissolved.
Being judged "unworthy to succeed" is relatively rare, and would arise, for example, if the surviving spouse/civil partner had murdered or committed certain other serious crimes against the deceased. It could also apply if the spouse/civil partner had deserted the deceased for at least two years before death.
If a couple is separated, a renunciation of each other's right to the legal right share is usually included in a separation agreement. Divorce or dissolution of a civil partnership, however, automatically ends succession rights.
Cohabiting partners have no automatic legal right to each other's estates, although under the redress scheme for cohabiting couples introduced by the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 a qualified cohabitant may apply for provision to be made from the estate of a deceased cohabitant. Cohabiting partners can make wills that favour each other. These wills, however, cannot cancel out the legal rights of a spouse/civil partner if someone is separated but not divorced or their civil partnership dissolved.
Being judged "unworthy to succeed" is relatively rare, and would arise, for example, if the surviving spouse/civil partner had murdered or committed certain other serious crimes against the deceased. It could also apply if the spouse/civil partner had deserted the deceased for at least two years before death.
Rights of children under a Will
Unlike a spouse/civil partner, children do not have any absolute right to inherit their parent's estate if the parent has made a will. Children born inside or outside marriage and adopted children all have the same rights and there are no age restrictions.
However, a child may make an application to court if he/she feels that he/she has not been adequately provided for. It is important to seek legal advice before making such an application. An application must be made within 6 months of the taking out of a Grant of Representation. The court then has to decide if the parent has failed in his/her duty to the child in accordance with the needs of that child. Each case is considered individually, but it is important to remember that the legal right share of the spouse cannot be infringed in order to give the child a greater share of the estate. It can, however, reduce the entitlement of a civil partner.
However, a child may make an application to court if he/she feels that he/she has not been adequately provided for. It is important to seek legal advice before making such an application. An application must be made within 6 months of the taking out of a Grant of Representation. The court then has to decide if the parent has failed in his/her duty to the child in accordance with the needs of that child. Each case is considered individually, but it is important to remember that the legal right share of the spouse cannot be infringed in order to give the child a greater share of the estate. It can, however, reduce the entitlement of a civil partner.