Under what circumstances is a person entitled to inherit from their deceased partner?

A few days ago thinheritance pic 1e Caribbean Court of Justice (“the CCJ”), Barbados’ final appellate court overturned the decision of the Barbados Court of Appeal in the Albert Anthony Selby v Katrina Smith case, thereby allowing the cohabiting partner of the deceased to inherit from him.

In February of this year, the Court of Appeal delivered its judgment in that case and decided against the deceased’s partner, Katrina Smith (“Ms. Smith”). The matter arose because both the deceased’s brother and Ms. Smith, applied for letters of Administration of the deceased’s estate.

The Succession Act Cap. 249 of the Laws of Barbados (‘the Act”) sets out the line of priority for those who may inherit from a person who died without leaving a will. In essence, the line of priority is as follows: the spouse and children of the deceased, the deceased’s parents, then his siblings.

The deceased was unmarried at the date of his death, he had no children and his parents died before him. Ordinarily, next in line to benefit from his estate would be his brothers and sisters. However, the deceased was living with a single woman, Ms. Smith, immediately preceding his death. Notably, section 2(3) (a) and (b) of the Act provides that

“For the purposes of this Act, reference to a “spouse” includes: (a) a single woman who was living together with a single man as his wife for a period of not less than 5 years immediately preceding the date of his death;

 (b) a single man who was living together with a single woman as her husband for a period of not less than 5 years immediately preceding the date of her death.”

The deceased was married for a portion of the five year period that he was living with Ms. Smith. The CCJ, like the Court of Appeal disagreed with the trial judge that the meaning of single included a married man who was separated from his wife.

However, the five-judge panel, presided over by the President of the CCJ, the Right Honourable Sir Dennis Byron, concluded that “the assessment of marital status for the purpose of rights under the Act is made immediately preceding the death of the deceased”. Consequently, Ms. Smith has the right to inherit from the deceased as his spouse since he was single immediately preceding his death and since she lived with him as his wife for at least five years immediately preceding his death; notwithstanding that he was not single for that entire five year period.

                                                                                                     – Kara-Je Kellman

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Do you qualify as a spouse? Lessons from Albert Selby v Katrina Smith

court picThe deceased, Albert Selby, died without leaving a will and thus his estate is to be dealt with according to the Succession Act and the rules of intestacy which give priority to the deceased’s spouse, children then parents then siblings then nephews and nieces. The deceased was divorced, had no children and his parents died before him. The parties in the Albert Anthony Peter Selby v Katrina Smith [unreported] C.A. B’dos Civil Appeal No 14 of 2010; 2017-02-14 case are the brother of the deceased man and an unmarried woman with whom the deceased was cohabiting up until his death.

At the center of the case is the Succession Act of Barbados, particularly Section 2 which speaks to who is considered a spouse under the Act. Section 2 (3) and (4) of the Succession Act states

(3) For the purpose of this Act, reference to a “spouse” includes

  • A single woman who was living together with a single man as his wife for a period of not less than 5 years immediately preceding the date of his death;
  • A single man who was living together with a single woman as her husband for a period of not less than 5 years immediately preceding the date of her death.

(4) For the purposes of subsection 3, a reference to a single woman or a single man includes a reference to a widow or widower or to a woman or to a man who is divorced.

One of the two issues which the High Court was asked to determine was whether Ms. Smith is capable of being regarded in law as the deceased’s “spouse” for the purposes of the Succession Act, given that the deceased was a married man during a part of the five year period immediately preceding the date of his death. The High Court decided in favour of Ms. Smith and the deceased’s brother appealed to the Court of Appeal.

The deceased having been married at the start of the cohabitation with Ms. Smith and for a part of the 5 years immediately preceding his death, the issue which the Court of Appeal had to determine was who constitutes a single person for the purposes of Section 2 of the Succession Act.

The Court of Appeal handed down its decision last month and held that Mr. Selby though separated but not divorced from his wife for the requisite period of not less than five years immediately preceding the date of his death cannot be considered as single. The consequence of the Court of Appeal’s decision is that Ms. Smith, who regarded herself as Mr. Selby’s partner for several years cannot benefit from his estate on intestacy since she does not qualify as his spouse.

                                                                                                           – Kara-Je Kellman

Click here to see the article ‘Under what circumstances is a person entitled to inherit from their deceased partner?’