Polygamous Marriages & Succession

4th January 2019Siobhan Rattigan-Smith0

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.

Siobhan Rattigan-Smith

After graduating from the University of Lincoln with a 2:1 in Law in 2014 Siobhan has dedicated herself to will writing as the head of the Society’s technical team. Siobhan is also the lead tutor for The College of Will Writing, teaching a handful of courses including our SWWEPP 4-day introductory course.

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