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The Impact of Marriage and Divorce on Wills and Inheritance in Hong Kong
Both marriage and divorce are important events in a person’s life and often, in the excitement of making wedding arrangements or the chaos of going through a divorce, people often forget that the law views any Wills previously made or not made differently as a result of such events.
Dying without a Will
If you die in Hong Kong without a Will, your estate will be distributed in accordance with intestacy laws. In other words, your assets will be distributed to your relatives by the order of husband/wife and children, parents, whole blood siblings, half-blood siblings, grandparents, uncles and aunts and finally the government. The manner and ratio of distribution varies by personal circumstances.
If you have a spouse and children, the first HK$500,000 of your residuary estate plus all of your personal belongings would be given to your spouse. The remaining residuary estate would be distributed 50% to your spouse and 25% to each of your surviving children.
Marriage and Impact on Estate Distribution
Marriage automatically revokes all previous Wills made, unless the Will is made in contemplation of your marriage. If you do not make a Will in comtemplation of your marriage or after you sign the marriage papers, estate distribution would follow the intestate regime above.
Divorce and Impact on Estate Distribution
Divorces especially those involving children or one or both of the spouses having a significant amount of assets can last for years before the final divorce decree is granted.
In the unfortunate event that you die before divorce proceedings conclude and you do not have a Will, your intestate estate will be distributed in accordance with the intestacy laws which gives a substantial portion of your estate to your spouse.
If you die before the final divorce decree is granted and you made a Will before commencing divorce proceedings, your estate would be distributed in accordance with your Will which probably means that your spouse will share in your estate.
The importance of making a Will or remaking one at the time of marriage or prior to the commencement of divorce proceedings cannot be ignored.
Third Parties and Impact on Estate Distribution
Partners outside of marriage and children born out of wedlock are normally not entitled to take from the estate in the case where a spouse dies with or without a Will. However, they have a right to apply to the court under the Inheritance (Provision for Family and Dependents) Ordinance (Cap 481) to share in the estate especially if they have been financially provided for in the lifetime of the deceased spouse. Such persons can also challenge the Will directly if one has been made. There are ways to prevent this as long as the spouse is still alive.
If you would like to have a confidential discussion about how you can apply your hard-earned money in accordance with your wishes, or if your parents are in the midst of a divorce, are contemplating divorce or there is a third party in the marriage, please contact our Disputes Partner and Head of Elder Law, Eunice Chiu at eunice.chiu@oln-law.com or +852 2182 1885 (WhatsApp and Wechat +852 9169 4356).
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