Spouses
- The Inheritance Act ensures spouses receive a minimum amount (minimum inheritance).
- If the deceased’s net assets exceed a minimum amount, their distribution will depend on the relatives by which the deceased is survived.
- The deceased may have left a will that strengthens or reduces these rights.
Spouses can choose to postpone division. This is called an undivided estate.
Inheritance based on the law
If the deceased did not leave a will, the inheritance will be divided between the spouse and the deceased’s family heirs with them inheriting set fractions.
Spouses inherit:
- A 1/4 share (25%) of the estate if the deceased had children (children/children from a previous relationship, grandchildren). If this 1/4 share amounts to less than the minimum inheritance, the inheritance is increased to a minimum amount.
- A 1/2 share (50%) of the estate if the deceased’s nearest relatives are their parents, siblings or siblings’ children/grandchildren. If this amounts to less than the minimum inheritance, the inheritance is increased to a minimum amount.
- Everything (100%) if the deceased only had more distant family heirs.
The spouse can have a will in which the right to inherit is strengthened or reduced.
Entitlement to minimum inheritance
If the deceased leaves a smaller net amount, the spouse is assured a minimum inheritance. This takes precedence over any children’s right to inherit. A will cannot override the minimum inheritance.
Spouses inherit everything if the deceased’s net assets (after deductions for debts, funeral expenses and grave tending fees) are worth less than the minimum inheritance.
The size of the minimum inheritance depends on whether the deceased is survived by lineal descendants or not:
If the deceased is survived by lineal descendants (children, grandchildren, great grandchildren)
- A spouse inherits at least (minimum inheritance) 4 x the National Insurance basic amount (G).
- If the total inheritance is less than 4 x G, no lineal descendants will receive an inheritance, although they may be entitled to take over assets in return for payment of the asset’s market value.
If the deceased had no lineal descendants
- A spouse inherits at least 6 x National Insurance basic amount (G).
Even if the minimum inheritance rules mean that the spouse becomes the sole heir, children of the deceased do have some rights. Children can request a power of attorney that enables them to search for financial assets, a notice to creditors and a division appraisal. They may also be entitled to take over assets in return for payment of the asset’s market value.
If you want to assume responsibility of the deceased’s estate in accordance with the rules concerning minimum inheritance, you have to complete and sign the form for this.
Inheritance based on a will
A will can either strengthen or reduce a spouse’s rights but the minimum inheritance cannot be reduced. A will that reduces rights is only valid if the spouse was aware of this prior to the death.
If the deceased had children, their ability to distribute their net assets via a will is limited. Children must together inherit at least 2/3 (mandatory share of inheritance). They cannot be deprived of this by writing a will. In such circumstances, the spouse’s right to inherit will increase from a statutory 1/4 to 1/3.
Those who do not have children can write a will that leaves everything to their spouse.
Inheritance after a relationship breakdown
You may lose your right to inherit based on the law if:
- a separation or divorce has been applied for prior to the death (the county governor must have received the application)
You may lose your inheritance in a will if:
- the relationship ended prior to the death
Spouse’s right to postpone division of the estate
A spouse may have the right not to divide an estate. This is called an undivided estate and entails postponing the division and payment of the inheritance until later.
In the case of an undivided estate, the spouse basically has the right to freely dispose of both what the deceased owned and what the deceased owned. This includes, for example, the right to:
- spend the money without the consent of any children or other relatives
- sell assets
- give away gifts (except gifts where the value is disproportionate to the net assets)
However, the spouse cannot spend the money in an inappropriate manner such that it is significantly reduced or is at risk of becoming so.
Requirements for postponing division
The spouse must ask to be allowed to postpone division of the estate. Submit the form ‘Undivided estate for spouses'.
These conditions must be met:
- The spouse must assume responsibility for the deceased’s debts. The responsibility for debts is that same as in a private division.
- If the deceased had children from a previous relationship, they must give their consent. This can be done in the form mentioned above. Alternatively, the division involving the children from a previous relationship can be carried out while the division involving shared children is postponed until later.
- If the deceased had a separate estate, the spouse and children must decide whether this should be part of the undivided estate. Use the form mentioned above.
Divided or undivided
Spouses often choose to postpone division of the estate. Give careful consideration to what will suit you best.
The following may be of relevance in your considerations:
- By dividing the estate, the spouse can gain direct access to certain assets (insurance coverage, own income, etc.). These are kept out of the division of the estate.
In the case of an undivided estate, these assets are added to the estate that will be divided later. You can still receive the assets and then request division of the estate. You must do this within three months of receiving the assets.
- The size of the inheritance if the estate is divided now. The spouse is always assured a minimum amount. The spouse may become the sole heir, for example if the inheritance is less than the minimum amount, see Examples of calculating inheritances.
- The spouse’s age and future life situation (e.g. health).
- Future relationships (e.g. remarrying) that mean that an undivided estate must be divided.
Division of an undivided estate while the spouse is alive
An undivided estate must be divided if the spouse requests it themselves or if they intend to remarry.
The other heirs can request an undivided estate be divided if:
- the spouse has entered into a new cohabitation that has lasted at least two years
- the spouse has significantly reduced the value of the undivided estate through irresponsible actions
When an undivided estate is divided, the spouse still has the right to inherit.
Division of an undivided estate when the spouse dies
When the spouse dies, the inheritance is divided with a 1/2 share going to both families. In these cases, no inheritance is calculated for the spouse that died last from the spouse that died first.
Example:
If the spouse had taken over an undivided estate including the deceased’s assets in their separate estate, account must be taken of this. An agreement will have often been signed in connection with this between the surviving spouse and the first deceased’s heirs concerning how the proportional division should work. As a rule, the agreement will be included in the form, ‘Undivided estate – surviving spouse’.
Cohabitants
Cohabitants have fewer inheritance rights than spouses. Some cohabitants have the right to inherit based on the law. It may be necessary to write a will to protect their right to inherit as best as possible.
Right of cohabitants with shared children to inherit
Cohabitants are entitled to a minimum inheritance from the deceased. The inheritance will be up to 4 x G and take precedence over the children’s right to inherit.
Cohabitants inherit everything if the deceased’s net assets (after deductions for debts, funeral expenses and grave tending fees) are worth less than the minimum inheritance.
The right to inherit can be expanded or reduced by a will. If the right to inherit is reduced, the cohabitant must have been familiar with the will prior to the death.
If the right to inherit is expanded, the children must nevertheless inherit at least 2/3. This cannot be circumvented by writing a will.
The size of the minimum inheritance depends on whether the deceased is survived by lineal descendants or not:
If the deceased is survived by lineal descendants (children, grandchildren, great grandchildren)
- A cohabitant inherits at least 4 x G.
- If the total inheritance is less than 4 x G, the children will not receive an inheritance, although they may be entitled to take over assets in return for payment of the asset’s market value.
Right of cohabitants to inherit where the deceased had no children
A surviving cohabitant who had no shared children with the deceased does not have the right to inherit based on the law.
If the deceased was childless, they may have written a will that bequeaths all or part of their net assets to the cohabitant.
Right of cohabitants to inherit where the couple did not have shared children, but the deceased had children from a previous relationship
Cohabitants who had no shared children with the deceased do not have the right to inherit based on the law. If the deceased leaves a will, the following applies:
- The deceased’s children will together inherit at least 2/3.
- The cohabitant’s right to inherit can be set at up to 1/3 of the estate.
- After five years of cohabitation, the cohabitant can inherit up to 4 x G, even if this amounts to more than 1/3 of the estate.
Undivided estate for cohabitants who had shared children
With shared children, cohabitants have the right to take over an undivided estate. Any children from a previous relationship must consent to the taking over of the undivided estate. Alternatively, the cohabitant can carry out the division involving the children from a previous relationship and take over the undivided estate with the shared children.
Cohabitants have fewer rights in relation to an undivided estate than spouses. According to the law, only the following assets are included:
- shared residence with contents that were jointly used
- car and holiday home and contents that were jointly used
The scope can be strengthened or reduced by a will. If it is reduced, the cohabitant must have been familiar with the will.
Undivided estate for cohabitants without shared children
Cohabitants without shared children cannot take over an undivided estate. Nor can you give someone the right to take over an undivided estate via a will.
Children
Generally, the children of a deceased person inherit 2/3 of the inheritance, although there are some exceptions.
Children inherit everything if the parent who dies:
- is not survived by a spouse or cohabitant with the right to inherit
- did not leave a will
The inheritance will be divided equally between the children if there is more than one child. If a child is no longer alive, the inheritance this child would have inherited will be divided equally between that child’s children (the deceased’s grandchildren).
Children inherit nothing if:
- the deceased was married and the total inheritance is less than 4 x G. In these circumstances the spouse inherits everything.
- the deceased was a cohabitant and they had shared children and the total inheritance is less than 4 x G. In these circumstances the cohabitant inherits everything.
The children may also be entitled to take over assets in return for payment of the asset’s market value.
Children inherit 2/3 if:
- the inheritance is greater than the minimum inheritance to which the spouse or cohabitant (with shared children) is entitled