A Future at the End of the Branch – We explain why a will is vital for couples without children
On Thursday, the authenticating of foreign documents was discussed and how the process differs in probate application. Such as documents from countries in the Hague Convention (i.e UK, Australia) where the public document needs to be certified by local authority and a Certificate of Apostille needs to be issued. Where the country is not in the Hague Convention (i.e China), a more complex two step certification may be required.
To end off probate week, we dive into a common phenomenon in Hong Kong and how a will is essential to these couples when planning their estate.
Remember the acronym DINK? Meaning “dual income, no kids”, it rose to prominence in the 1980s – the age of the yuppie, when high-flying young professional couples were delaying having children, or choosing not to have them at all. Some thirty years on, statistics show that the number of DINK couples continues to rise… a trend that has had important ramifications in the world of will making.
Does My Partner Automatically Inherit My Assets?
The short answer to the above question? No!
Couples without children often automatically assume that their spouses will inherit everything when one of them dies, but this is far from the case. In fact, dying intestate could leave your partner with little more than the contents of your wardrobe and kitchen!
According to Hong Kong’s Intestates’ Estate Ordinance, if a person without a will is married and has parents or siblings but no children when they pass away, then the surviving husband or wife is entitled to:
- Their personal chattels (essentially items like furniture, homeware, clothes, jewellery, books and ornaments)
- Half of the estate
Meanwhile, the rest of the estate would automatically pass onto your parents or, if they are no longer alive, to your siblings. Simply put, if you want to make sure your partner receives the inheritance of your choosing, a will is essential.
What Happens to the Assets of Unmarried Couples?
If you aren’t legally married to your partner, do not even think about dying without making a will first!
Regardless of the length of your relationship, an unmarried spouse’s entitlement is not recognised by the ordinance; if you pass away without making a will, everything would be simply be passed onto the deceased’s parents or siblings.
You must also make sure that are you “validly married” – and Hong Kong has some pretty strict definitions in that regard too. Valid marriage in Hong Kong means:
- A registered marriage conducted in Hong Kong, which was made in accordance with the city’s Marriage Ordinance
- A foreign marriage conducted outside Hong Kong, which was made in accordance with the law in force at the time and in the place where the marriage was performed
- A Chinese customary marriage conducted in Hong Kong before 7 October 1971, which has been declared to be valid by the Marriage Reform Ordinance
- A modern marriage (an open ceremony between two parties over the age of 16 with at least two witnesses) conducted in Hong Kong before 7 October 1971, which has been validated by the Marriage Reform Ordinance
Perhaps even more important is what does not constitute a valid marriage in the eyes of Hong Kong law. At the time of writing, de facto marriages (couples who have lived together for years without getting legally married), same sex marriages, transsexual marriages and civil partnerships are not recognised as valid in Hong Kong, regardless of their legal status elsewhere in the world.
Whilst Hong Kong’s Inheritance (Provision for Family and Dependents) Ordinance does provide a route for cohabiting couples to receive maintenance from their deceased partner’s estate, even if they die without a will or being legally married (see our article about making a will A Quick Guide To Writing A Will In Hong Kong), this definitely shouldn’t be depended on – so making a will remains the most certain way of ensuring that your loved one inherits exactly the assets you want them to.
This ends our probate week articles and the team at Hugill & Ip hopes you have gained more insight regarding administrating an estate in Hong Kong and to recognise the importance of legal advice when preparing a will.
Our team at Hugill & Ip has extensive experience in dealing with Hong Kong’s complicated marriage, testamentary, probate and inheritance laws – so if you need further advice on these subject and other topics discussed this week, get in touch with us to find out how we can help.
This article is for information purposes only. Its contents do not constitute legal advice and readers should not regard this article as a substitute for detailed advice in individual instances.