BAHAMAS Law and Practice Contributed by: Sharmon Y. Ingraham, Higgs & Johnson
4. Marital Property and Succession 4.1 Property Regimes During Life and Deathtime Rights and Protections Generally, having regard to testamentary freedom in The Bahamas, spouses may gift or dispose of their personal property without restrictions. However, if by the will of one spouse, such spouse fails to make “rea- sonable financial provision” for the surviving spouse, or if the surviving spouse considers insufficient provi- sion has been made in the deceased spouse’s will, an application to court may be made seeking to have some part of the net estate appropriated for the maintenance of the surviving spouse, provided the deceased spouse was domiciled in The Bahamas (see Part III of the Inheritance Act, Chapter 116, Statute Law of The Bahamas). There are a few exceptions that limit the freedom of disposition under the law of The Bahamas. • If property is jointly owned by spouses and the right of survivorship applies, on the death of the first of the spouses to die, the surviving spouse becomes the owner of the whole property by operation of law. The jointly held asset would not form any part of the estate of the deceased spouse or be subject to the probate process. • Additionally, under Section 24 of the Inheritance Act, Chapter 116, Statute Law of The Bahamas, a surviving spouse, who does not have an enti- tlement to occupy the home that served as the marital residence during the lifetime of the spouse, is given conditional protection against eviction from the residence. Specifically, the surviving spouse’s right to reside in the marital home continues until the death, remarriage or an order varying the right to reside. One spouse has no legal entitlement to deal with or dispose of assets that are jointly owned with the other spouse. Where one spouse purports to dispose of or transfer any part of marital property that is owned with the other spouse without the consent of that spouse, such disposition or transfer is liable to be invalidated or set aside under provisions like those contained in the Fraudulent Dispositions Act, Chapter 78, Statute Law of The Bahamas, or the Trusts (Choice of Govern-
income tax residency that impact, or are impacted by, domicile.
3. Intestacy and Forced Heirship Laws 3.1 Intestate Succession In circumstances where a person dies without hav- ing created a will, the Inheritance Act, Chapter 116, Statute Law of The Bahamas, directs the distribution of the estate among certain categories of recipients; principally among a spouse, descendants or anteced- ents and remoter relatives surviving the person. In par- ticular, Section 4 of the Inheritance Act equally divides the estate among the surviving spouse and children, allocating 50% of the estate to the spouse and divid- ing the remaining 50% equally among the children. If there is no surviving spouse, the intestate person’s estate is shared equally among any surviving children. Where there is neither spouse nor children, but there are grandchildren, the estate is shared equally among the grandchildren. In the event the deceased person is not survived by a spouse or descendants, the Inheritance Act provides that the estate be paid out to any parents surviving the intestate person. In circumstances where there is neither a spouse nor descendants or ascendants, the statute enables the estate to be distributed among siblings, nieces and nephews, grandparents and ulti- mately next of kin in alternative provisions. Similarly, if any provision or gift under a will fails, or if the entirety of a will fails and an asset or part of (or the entire) estate is or comes within the scope of intes- tacy provisions, the foregoing beneficiary designation imposed by the Inheritance Act is applicable. 3.2 Forced Heirship Pursuant to the Wills Act, Chapter 115 of the Statute Law of The Bahamas, the testamentary freedom of every person is recognised in The Bahamas. The leg- islation expressly provides that a person may dispose of all real estate and personal property that is per- sonally owned by them at the time such person dies. Consequently, forced heirship or family rights do not form a part of the law of The Bahamas.
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