The surviving spouse/civil partner may require that the family/shared home be given to him/her in satisfaction of his/her legal right share, although if the house is worth more than the legal right share, the spouse/civil partner may have to pay the difference into the deceased's estate. A court may decide that this sum does not have to be paid if it would cause undue hardship to the spouse/civil partner or dependent children.
Giving away property in order to disinherit
If a court finds that the deceased person gave away property before he/she died with the intention of defeating the interest of or unfairly reducing the legal right share of a spouse/civil partner or child, a court order may be issued to the person who received the property, making that person a debtor of the estate, and requiring them to pay back an amount to the estate.
Gifts that fail
Remember that any legacy or gift in your will could fail for many reasons.
- If your will states that you are leaving an asset to someone and you no longer have the asset or the asset no longer exists, then the gift fails, or is in ademption.
- If you leave a gift to a person who is a witness to your will.
- If the gift is not clearly identified in your will or it does not conform to its description in the will.
- Your gift lapses, or no longer applies, if the beneficiary dies before you do. If this happens or if the beneficiary refuses to accept the gift, your gift goes back to your residuary clause, or if you do not have one a residuary clause, into intestacy. Your gift will not lapse, however, if the beneficiary who dies is a child or other descendant of yours, such as a grandchild, but whose child (or other descendant) is still alive. In that case, the gift becomes part of your deceased beneficiary’s estate for distribution according to their will or intestacy.