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Second Marriage & Dangers of Joint Ownership

As set out in the recent case of Scarle v Scarle (2019)

Husband and Wife (H & W) each had a daughter from previous relationships.

They had neglected to carry out any proper planning and made no Wills, and the case is a text book example of the dangers of not getting timely and competent professional advice.

They died in a common accident and there was uncertainty as to the order of their deaths.

A legal rule says that: “where 2 or more persons have died in circumstances rendering it uncertain which of them survived the other or others, such deaths shall (subject to any order of the court) for all purposes affecting the title to property, be presumed to have occurred in order of seniority, and accordingly the younger shall be deemed to have survived the elder.

W was younger than H, but there was some forensic evidence suggesting that she might in fact have died before H. However, it was far from certain, so the presumption of the order of deaths was not overturned.

All assets of any value (a house and about £20K) were held by the couple jointly.

Unfortunately for H’s daughter, the presumption of death of H first meant that H’s joint interest in the assets passed automatically (by operation of law) to W – even if she only notionally outlived H  by a fraction of a second, and then upon W’s death, all the assets were inherited by W’s daughter outright under the rules of intestacy – what happens to the distribution of property when someone dies without leaving a Will.

So, W’s daughter kept the parties’ assets entirely to herself.

Had H and W opted for a different system of co-ownership of their house and savings (to use the legal speak, beneficial tenants in common instead of joint tenants), the problem would have worked out differently.

Instead of W automatically becoming entitled to all the assets (due to the presumed legal rule), the Intestacy rules would have applied to both H and W, and those rules specify that a spouse must survive by 28 days in order to inherit (not just notionally by a fraction of a second).

So, neither spouse would have inherited from the other under the intestacy rules – each would have been taken to have died without being survived by the other, in which case each daughter would have inherited the share that belonged to her parent, probably a 50/50 split.

However, that would have been an accident of fate or chance, rather than a planned outcome.

Moral – a classic illustration of the problems that can arise in the case of second marriages where inheritance issues have either not been addressed, or worse still, where they have been swept under the carpet!

There just is no substitute for professional advice which is customised to your circumstances.

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