The Life Interest due to children following the death of the second spouse is payable equally, however, if any of the children die before the second spouse, is the life interest divided between only those living at the date of the second spouse’s death or all of the children and those that have died to their estates?
Children living at the date of the intestate’s death share equally. Included would be the issue of any child who pre-deceased the intestate’s death (and who are alive at the date of the intestate’s death). Such issue would take the child’s share in equal shares per stirpes.
All interests are contingent on attaining 18 (or marrying).
So for example, there are 6 children and a spouse of the intestate. The spouse receives a 50% life interest in the remainder. My question is, if when the spouse dies, the life interest in the remainder is then shared equally between those children living at the date of death of the spouse or the intestate? The reason I ask is that I have only 5 children living at the date of death of the spouse, the child who died, died after the intestate and did not leave any issue, should their share pass to their estate or revert back to the 5 surviving siblings equally?
If the dead child had attained age 18, or married under that age, their entitlement will have vested and their share is now due to their estate. This is, of course, on the understanding that there are no circumstances that could invoke the public policy of forfeiture.
Paul Saunders FCIB TEP
Independent Trust Consultant
Providing support and advice to fellow professionals
Thank you, that clarifies the position.
On an intestacy (on or after 1 October 2014) a surviving spouse takes, inter alia, a 50% ABSOLUTE interest in residue.
The other 50% of residue is held on statutory trusts for the issue (ie lineal descendants) of the intestate.
However, you refer to a life interest in residue for the surviving spouse so I assume the deceased died prior to 1 October 2014. In which case the residuary estate is held as to 50% for the surviving spouse for lifetime and subject to this is held on statutory trusts for the issue of the intestate (effectively an interest in remainder). If one of the issue dies post death of the intestate but pre death of surviving spouse their remainder interest would pass to the estate of the deceased beneficiary.
The other 50% of residue is held on statutory trusts for the issue of the intestate; such interests may be immediate but often contingent until attaining age 18. A failure to satisfy the contingency means that the issue is treated as if they had never existed.