Limitations on Testamentary Freedom

The Rights of Spouses, Civil Partners and Cohabitants


The Testamentary freedom of a married Testator is curtailed to some extent by the provisions of the Succession Act 1965. It is restricted to an even greater extent where the Testator is both married and a parent. It is further restricted by the provisions of the ‘Civil Partnership Act’ (Civil Partnership and Rights and Obligations of Cohabitants Act 2010) where the Testator is a cohabitee or qualified cohabitant.

A surviving spouse/civil partner possesses a unique importance because of the provisions of the  Succession Act 1965 and the Civil Partnership Act. The provisions are designed to protect a surviving spouse/civil partner where the deceased dies testate (with a will) or partially testate. The protection under the 1965 Act is a blatant restriction on the testamentary freedom of a testator.

Where a Testator dies testate (leaving a will) and leaving a spouse/civil partner and children, the surviving spouse/civil partner has a Legal Right Share under the Succession Act to one third of the estate.

Where a Testator has made provision for their spouse/civil partner in their will, the surviving spouse/civil partner can elect to take either the bequest under the will or their Legal Right Share. The Legal Right Share takes priority in the estate over all other bequests. This essentially can ‘blow the will out of the water’ and disrupt all other the bequests in the will to subsequent beneficiaries. In addition, a surviving spouse/civil partner can opt or choose to take the family home in or towards satisfaction of the Legal Right Share.

Where a Testator fails to make any provision for their spouse whatsoever within their will, the Legal Right Share automatically vests in the surviving spouse/civil partner and will take priority over any other bequest made under the will.

A surviving spouse will only cease to be a spouse/civil partner if they have:

  • Renounced their rights to a Legal Right Share. This is a document signed by the surviving spouse formally renouncing (formally declining) any legal right share to the estate.
  • Separation/Divorce/Dissolution or Nullity of the marriage.
  • Section 120 Unworthiness to Succeed, which means that a spouse/civil partner may lose their legal right share in certain circumstances (murder/manslaughter/attempted murder of the deceased or an offence against the deceased or dependent child which carries a sentence of more than 2 years, or desertion for more than 2 years provided that the desertion is not justified by the spouses bad behaviour)

If you and your spouse/civil partner are living apart but with no formal separation agreement or divorce, you continue to be a spouse in the eyes of the law. This means that you are both still entitled to the appropriate share of your deceased spouses’/civil partners estate.

If a formal separation agreement is in place, you may have already renounced or disclaimed (given up) your succession rights against each other. Similarly, if a court has granted a decree of judicial separation, your succession rights will be extinguished if an order stating this is made by the court.

If you are divorced, you are not normally entitled to any inheritance from you ex – spouse/civil partner when they die, unless they have left you something in a valid will.

Further complications can arise where a Testator leaves a spouse and a co – habitant simultaneously. Under the ‘Civil Partnership Act’, cohabiting couples have certain rights in relation to inheritance. To qualify for these rights, you must be cohabiting for at least 5 years (or 2 years if you have dependent children together). Whilst cohabitees have no automatic rights to a share in the estate of their late partner, they do have a right to make application to the Court for provision to be made for them from the estate of their deceased partner.

There can be many competing claims in an estate which can, to some extent, limit a Testators testamentary freedom in deciding the distribution of their estate.

Where such claims are made in an estate, this will have a significant consequential effect on the bequests under the will. Testators can take active steps now to avoid such disastrous consequences by properly planning and managing for the passing of their estate thereby avoiding disastrous family disputes.