Mcgregor

The test to determine whether any new statute has achieved the intended result usually comes after it is tested in court. This is likely to be the fate of the Property (Rights of Spouses) Act (PRSA), which attempts to ensure that the family home is equally divided between spouses, except where such division would be inequitable.

Property (Rights of Spouses) Act

According to Section 6 of the PRSA, a spouse is entitled to get 50 per cent of the family home in the event of separation, divorce or death. Will the existence of a will alter that position?

Laws of Intestacy

If a person dies intestate (without leaving a will), the Intestate's Estates and Property Charges Act ('intestacy laws') determines the manner in which the deceased person's property is divided among the beneficiaries. In particular, if a person is survived by a spouse and one child, real property (e.g. the family home) will be shared between that spouse and the child in the ratio of 2/3: 1/3. If there are two or more children and a spouse, the spouse will take one-half of the real property and the children will share the other half among them equally.

Do they overlap?

If we assume that the PRSA and the intestacy laws are entirely separate, the surviving spouse in the first example would achieve a better result if he or she relied on the PRSA rather than the intestacy laws. This is because, instead of having to settle for a half of the family home, the spouse would get 2/3. If we say that the PRSA and intestacy laws complement each other, the surviving spouse could get half of the family home under the PRSA and 2/3 of the remainder of the same family home under the intestacy laws.

The choice

A surviving spouse will be faced with a choice whether the spouse left behind a will or not. In the event of intestacy, the surviving spouse may choose to rely on the PRSA or the intestacy laws. If there was a will, depending on its provisions, the surviving spouse will still have to decide whether to accept what has been provided under the will or to rely on the PRSA.

How New Zealand handles the situation

Similar laws exist in New Zealand. However, in anticipation of the confusion which could result, the legislators in that country clearly set out the manner in which a surviving spouse is to go about making the choice. Within six months from the date of death, the surviving spouse must choose whether to apply for entitlement under the Property (Relationships) Act (option A) or take what has been left under the will or if there is no will, under the laws of intestacy (option B). This choice is to be communicated to the administrator of the estate.

If no choice is made within six months, the surviving spouse will be deemed to have chosen option B, so the provisions of the will or the laws of intestacy will apply.

Perhaps this is a position which our local legislators need to address so that the courts do not become burdened with the issue. However, a properly drafted prenuptial agreement could avoid the need to consider these issues at all.

Sherry-Ann McGregor is a partner and mediator with the firm Nunes, Scholefield, DeLeon & Co. Send feedback and questions to lawsofeve@yahoo.com or Lifestyle@gleanerjm.com.