If the deceased spouse is survived by a surviving heir, the widow is protected by the fact that the widower always retains undivided possession of the common home and its movable property. The widow is entitled to retain undivided possession of this part of the estate even if the first spouse to die had made a will of his or her property in favour of a beneficiary other than the widow.
Widowed person's residence allowance
A widow's right to retain undivided possession of her deceased spouse's estate is not dependent on the length of the marriage or whether the spouses had a matrimonial right to each other's property.
Inheritance tax is reduced for partners in an estate if the property is encumbered by a widow's right of possession. The amount of the deduction depends on the age of the widow or widower. The younger the widow, the longer the life expectancy and the higher the deduction for the heirs.
Example:
Two brothers inherit their father's estate. The mother, a widow, is still living. The parents had no will.
Question: Can a widow retain undivided control of the estate so that the heirs receive a deduction for the entire inheritance, which includes two different properties - a detached house and a summer cottage? Or do they only get a tax deduction for the dwelling in which the widow remains?
Answer: The surviving spouse may retain undivided possession of the spouses' joint home or any other dwelling suitable for the surviving spouse's home that is part of the estate (a "homestead"), if the surviving spouse's assets do not include a dwelling suitable for the home. The ordinary contents of the common home must always remain undivided and in the possession of the surviving spouse.
The estate can remain in full control of the widow or widower with the consent of the partners. The heirs' right to inheritance tax relief is affected only by the right of possession provided for by law (the widow's right of residence) or by a will.
In this case, the deduction for the right to manage - i.e. the tax deduction - does not apply to the entire inheritance, i.e. in practice the summer cottage.
A tax deduction is made for the value of the property to the heir to the extent that the right of possession relates to the dwelling and household effects of the widow or widower which are subject to the residence protection provided for by the Act.
The management of other property is only affected by inheritance tax if the right of management has been granted in the will to someone other than the heir.
Tip:
To optimise tax relief, it would have been worth making a will that gives the children and the widow or widower the right to use and manage the property.
Article drafted by the AdvocateTuula Rainto, Amos Law Firm. You can always call him free of charge on 010 299 5090. You can consult our price list Here.
Article updated 28.3.2023
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