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Should a surviving partner have a choice whether to follow the will or elect a property division?

When someone’s partner dies, the law gives him or her a choice:

  • They can accept whatever property the deceased gives to them under the will.
  • Or they can divide the couple’s property under the Property (Relationships) Act 1976.

If a surviving partner does not make a choice, the law says they have chosen to follow the deceased’s will.

The law gives people the choice because it might be unfair if someone were worse off when their partner died than they would have been if they had separated.

The flexibility the law gives can be a good thing. Surviving partners are not forced to accept the will, nor are they forced to divide their property. It is up to them.

But until the partner makes the choice, no one can be sure whether the will is going to apply. Because of this uncertainty, it can be difficult for people making wills to make plans for their property after they die.

A family member, friend or charity might be a beneficiary under the will. They too may struggle to know what to expect before the surviving partner makes a choice.

Sometimes will-makers can say in their wills what should happen if their surviving partner chooses to divide the property through the Property (Relationships) Act 1976. But we think that is rare. They might say, for example, that if the surviving partner chooses to divide the property through the Property (Relationships) Act 1976 the survivor can still receive certain gifts from the deceased partner’s share of the property.

It is also hard for surviving partners. To make an informed choice, they will need to take legal advice. This can be expensive and stressful, at what is already likely to be a difficult time.

What do you think?

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