&
POLYGAMOUS MARRIAGES
SUCCESSION
Spouses and civil partners are afforded certain benefits when it comes to
succession law; benefiting from favourable inheritance rights on intestacy and quite
generous inheritance tax exemptions. But what if someone practiced polygamy and
dies leaving behind multiple spouses?
This is a point of law that our courts have been asked to
consider in a few areas concerning succession law. Below
we cover the treatment of polygamous marriages in related
to intestacy, IHT, and Inheritance (Provision for Family and
Dependants) Act 1975 claims.
When a person dies intestate their estate will be distributed
according to the rules of intestacy. The hierarchy of who
will inherit the estate is set out in s46 of the Administration of
Estates Act 1925. If the intestate died leaving a spouse and no
children then their spouse will receive the entire giftable estate.
If they died leaving a spouse and children then the spouse
will receive the statutory legacy of £250,000, all personal
chattels, and half of the residue. The children will receive the
remaining half. But what if there are multiple people who fit
the definition of “surviving spouse”?
In the case of Official Solicitor to the Senior Courts v Yemoh
and others [2010] EWCH 3727 (Ch) the court was asked
to consider this exact scenario. In this case the deceased
died intestate and domiciled in Ghana. He owned various
assets, including real property, in England. He was party to
a number of polygamous marriages which were valid under
Ghanaian customary law and was survived by 8 wives as
well as children. It was held that spouses from a polygamous
marriage that was valid according to the law of the intestate’s
domicile are to be recognised as the surviving spouse for the
purposes of s46 AEA 1925.
All surviving spouses together are recognised as “the
surviving spouse” and entitled to the statutory legacy to be
shared equally between them. As the surviving spouse they
would also collectively be entitled to the half of the residue
in equal shares. In the Yemoh case the surviving spouses
were collectively entitled to a life interest in half of the residue
as the intestacy rules at the time did not give the spouse an
absolutely entitlement to this part of the estate.
Under s1(1)(a) of the Inheritance (Provision for Family and
Dependants) Act 1975 a surviving spouse may bring a claim
against a deceased’s estate if their will or intestacy failed to
make reasonable financial provision for them. It was decided
in the case of Re Sehota (deceased) [1978] All ER 385 that
the wife of a polygamous marriage was to be treated as the
deceased’s wife for the purposes of the 1975 Act.
Transfers to spouses on death pass free of IHT due to the s18
Inheritance Tax Act 1984 spouse exemption. This exemption
applies to transfers between people who are lawfully married
to each other at the time of the transfer. This means that transfers
to multiple spouses of a valid polygamous marriage benefit
from the exemption. If the surviving spouses are domiciled
abroad then the total exemption cannot exceed the NRB at
the time of the transfer.
Spouses may benefit from a transferable NRB. If the spouse
died before them their PRs may transfer any unused NRB on
their death. A person who was a party to a valid polygamous
marriage may transfer the unused NRB’s of all of their
predeceased spouse’s but only up to the statutory limit. The
result is that the maximum that can be transferred is the value
of 100% of one NRB.
For a polygamous marriage to be considered ‘valid’ in
England & Wales it must have been conducted abroad and
meet the requirements of a valid marriage according to the
law of the country where the marriages took place.
The Society of Will Writers
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