Q&As

A surviving spouse is left an interest in possession in half of the matrimonial home in the Will of the deceased spouse. The Will contains a provision such that if the property is sold in the surviving spouse’s lifetime, the proceeds pass down to children. If this occurs prior to the surviving spouse going into care, could this be deemed to be a gift made by the surviving spouse for the purpose of deliberately depriving themselves of assets under the Care Act 2014?

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Produced in partnership with Helen Galley of XXIV Old Buildings
Published on LexisPSL on 03/07/2019

The following Private Client Q&A Produced in partnership with Helen Galley of XXIV Old Buildings provides comprehensive and up to date legal information covering:

  • A surviving spouse is left an interest in possession in half of the matrimonial home in the Will of the deceased spouse. The Will contains a provision such that if the property is sold in the surviving spouse’s lifetime, the proceeds pass down to children. If this occurs prior to the surviving spouse going into care, could this be deemed to be a gift made by the surviving spouse for the purpose of deliberately depriving themselves of assets under the Care Act 2014?

In this Q&A, it would appear that the deceased spouse had a 50% interest in the matrimonial home. It is to be assumed that the other 50% was owned by the surviving spouse or, potentially but unlikely, by a third party. It is also to be assumed that the property was held by the co-owners as tenants in common in equal shares and not as beneficial joint tenants. If they held as beneficial joint tenants, the deceased’s share would pass to the surviving co-owner by survivorship and the gift in the Will would be void.

Assuming therefore, that before the death of the deceased spouse, the property was held by

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