Legal Issues and Death in the family
Dealing with the death of a loved one is an emotional and harrowing process, and at this difficult time, one needs to ensure that the legal and formal requirements following the death are adhered to at each stage, especially in UAE. The procedures differ depending on whether your loved one passed away at home, in hospital or elsewhere and therefore you should contact the relevant Embassy / Consulate to seek the appropriate advice. It is worth noting that only after the formalities have been completed and the death has been registered with the appropriate authorities in UAE, will you be able to proceed with the funeral arrangements.
Following the death, there are various considerations that you should be aware of :
If the deceased had a life insurance policy, you should notify the insurance company as soon as possible.
Local bank accounts in the name of the deceased and in joint names with third parties (for example spouses), will be frozen as soon as the bank has been made aware of the death. It is important to seek legal advice in relation to local inheritance procedures to ensure funds are preserved for the rightful heirs and also to ensure they are released as swiftly as possible so the surviving family does not experience any financial hardship.
You should liaise with the deceased’ employers to inform them of the death. Depending on the deceased’s duration of employment and the terms of the labour contract, the calculation of final salary, outstanding holiday pay, end of service gratuity and unpaid bonuses shall need to be finalised. The legal heirs of the deceased would be entitled to such payments after the issuance of a formal Court Order. In addition, the employer would seek to cancel the visa of the deceased and the impact of this on any dependents should be considered.
Marriage is automatically ended upon the death of a spouse. In order to remarry, you will need to provide proof of your status. If widowed, a duly translated and attested death certificate will be required prior to marriage. If you choose to re-marry in UAE in accordance with Islamic marriage rites, a woman will require the consent of her guardian (usually her father). If the father has passed away she will be required to produce evidence of that, and would instead require the consent of an alternative guardian, usually the next closest male relative.
If a spouse dies during the divorce process in UAE, depending on whether the parties are Muslim or not, specific legal advice should be sought as to any financial claim that had been brought in divorce proceedings, to continue under a different type of proceeding in relation to the deceased's estate.
If you are under a spouse’s visa and your spouse passes away, your visa will also be cancelled. Following recent changes to visa legislation in UAE, a widow shall be permitted to apply for a one-year residence visa following the death of her spouse, without the need for a sponsor. The same would apply for any minor children of the deceased. The legislation is due to be implemented by the end of the year.
In the case where divorce proceedings are ongoing in another jurisdiction, and a final decree of divorce has not yet been pronounced, the proceedings shall immediately come to an end upon the death of one of the parties. In such circumstances, the surviving spouse will still be regarded as a ‘spouse’ with all the usual entitlements to death benefits. Furthermore, the surviving spouse will continue to be entitled to inherit as a beneficiary under the terms of the deceased’s last Will, or if not named in the Will, may make a formal claim against the deceased’s estate. In the absence of a Will, the surviving spouse shall benefit under the default intestacy laws applicable to the succession of the assets.
Although having a valid Will in place is vital in any country, its importance is perhaps most significant in the UAE. Default local inheritance laws are based on forced heirship provisions derived from Islamic Sharia law, and these shall apply to the distribution of UAE-based assets owned by Muslims, regardless of nationality, in the event of their death. A non-Muslim individual is permitted to make a Will determining succession of local assets, and should indeed ensure that a valid Will is put in place if Sharia law is not the preferred basis of distribution. Recent changes in local inheritance laws and procedures now mean there are various options available for non-Muslims to consider when executing a Will for local assets, including registering at the DIFC Wills Service Centre (DIFC WSC), the Abu Dhabi Judicial Department (ADJD), or the Dubai Notary Public. It is imperative to obtain specialist legal advice to guide and advise on each option and to assess the most appropriate option for your specific circumstances.
A child under the age of twenty-one is considered a minor in the UAE. Default local inheritance laws shall apply to guardianship of minor children in the event of death of either parent. Guardianship of Muslim children resident in the UAE shall be determined in accordance with Sharia law, regardless of nationality. Guardianship of non-Muslim children can be determined by appointing guardians in a valid Will. In the absence of a valid Will, guardianship shall be determined in accordance with Sharia law for non-Muslim children and this generally means that in the event of death of the father, the next male relative of the deceased father shall be the default guardian, even if the natural mother of the children is still alive. For example if the paternal grandfather of the children is alive, then he shall be the legal guardian of the minor children.
It is advisable when considering the appointment of guardians, to appoint both temporary, interim guardians who are UAE-based, as well as permanent guardians who would have long term care of the minors until they are adults. The role of the temporary guardians is to ensure there are individuals appointed to care for the children in the immediate aftermath of sudden death of both parents and therefore these individuals need to be locally resident. The permanent guardians would assume care in due course, especially as permanent guardians generally tend to be family members who are resident outside the UAE.
For ex-pats, various provisions can be drafted into a Pre or post nuptial Agreement to protect a party in the event of the death of a spouse. Specific instructions can be given for assets or gifts to be passed to the surviving spouse. Other financial provisions in the event of death can also be stipulated including the requirement for the parties to make Wills within a certain time of the Agreement. It is important to state the jurisdiction for the governing law so that there are no conflicting provisions in the event of death.
This article is an overview of the subject matter, does not constitute legal advice, and should not be relied upon as such. For specific advice in relation to any of the issues highlighted above, please contact Head of Family Law, Dee Popat email@example.com or Head of Wills & Inheritance, Tasleem Sayani firstname.lastname@example.org
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