The survivor of you will need to make a very important decision between your entitlements under the deceased's will or whether to claim against their estate. For practical purposes, death is treated similar to a separation under the Property (Relationships) Act 1976, known as the PRA.
There are specific provisions in part 8 of the PRA dealing with the division of relationship property on death - the survivor has to make the following choice within six months of probate being granted:
- Option A which is to make an application to the court under the PRA for a division of relationship property, or
- Option B which is to elect not to make an application under the PRA for division of relationship property but to accept the provision made for them under their partner or spouse’s will and in any other way by the deceased.
Importantly, if Option A is chosen then the surviving spouse loses all gifts made to him or her in the deceased’s will. It needs to be remembered, however, that when applying to court for the division of the relationship property, as part of the court application, the surviving spouse can ask the court for an order that the gifts under the will be reinstated.
If the surviving spouse or partner does not make an election within six months of the date of probate being granted then he or she is deemed to have chosen Option B – that is accept what they receive under the will. This is, in effect, the default option.
Sometimes Option A is appropriate in the circumstances but if you wish to avoid the possibility of the survivor choosing option A then you can enter into a contracting out agreement that states these rules will not apply and setting out how your relationship property will be divided upon death.
