Judicial Separation, Intestacy and Wills: Understanding the Interaction

When it comes to the intersection of judicial separation and the death of one of the parties, the legal nuances can be quite intricate. This article aims to clarify how these two concepts interact, particularly in the context of intestacy, Wills and the inheritance tax implications.

Judicial Separation

Judicial separation is the process by which a married couple formally separates. This is different from the parties simply living apart (what we might think of in everyday language as a couple being “separated”) and refers to a specific legal process a couple must go through in order to be judicially separated. While this does not legally end the marriage (as a Final Order in divorce proceedings would), judicial separation does have other legal consequences for the parties:

1. The parties are no longer obliged to live together.
2. The parties can settle their finances and children proceedings, with the Court being able to use many of the same orders as it can in divorce.
3. The parties’ financial claims against each other on intestacy and under a Will change. 

As such, some couples may choose to judicially separate rather than divorce. In those cases, should one of the parties then pass away, it is important to understand the position for the surviving party under both the intestacy rules and a Will.

Intestacy

In the event of intestacy, the position is clear: if the parties have judicially separated and one dies intestate, the surviving spouse is treated as if they have predeceased the deceased. This means that the surviving spouse does not inherit under the intestacy rules. This mirrors the situation that would occur if the parties were divorced and one died intestate. Essentially, judicial separation has the same effect as divorce in this context, ensuring that the estate is distributed as if the surviving party had already died.

Wills

The situation becomes more nuanced when considering Wills. Judicial separation does not legally end the marriage, which means that if the parties are judicially separated and one dies leaving a Will that benefits the spouse, the surviving party still inherits.  Consequently, the spouse exemption for inheritance tax continues to apply and gifts left in a Will to a spouse (whether judicially separated or not) are free of inheritance tax. This is because a Final Order of divorce is required to revoke the spouse exemption for inheritance tax purposes. Without this Final Order, parties who are judicially separated remain legally married, and the spouse exemption remains intact.

It is worth noting that, if the parties are judicially separated and one dies leaving a Will that does not provide for the other, the surviving party is entitled to make a claim against the estate under the Inheritance (Provision for Family and Dependants) Act 1975. However, the claim is limited to a claim for reasonable financial provision, as opposed to the higher standard that would apply if the parties had not judicially separated.

Conclusion

Understanding the implications of judicial separation on inheritance can be crucial for estate planning if a couple is considering ending their relationship. While judicial separation affects intestacy in a manner similar to divorce, it does not alter the application of the spouse exemption in the context of Wills. This distinction underscores the importance of considering the specific legal status of the marriage when planning for the future.

For further information, please contact our expert team: Wills, Trusts & Estates Solicitors | Irwin Mitchell