Whether you have a Will or not, your spouse or civil partner and your children have an automatic entitlement to Legal Rights in Scotland when you die. Neither your spouse or civil partner nor your children need to do anything to enforce their Legal Rights, but they can formally claim legal rights if necessary. Your executor must take these into account as Legal Rights are treated as a debt on your estate.
It is important to note that if you are cohabiting but are unmarried, your partner has no automatic entitlement to share in your estate and no Legal Rights in your estate, no matter how long you have lived together.
As a result of Legal Rights in Scotland it is almost impossible to disinherit your children!
What are Legal Rights in Scotland?
Legal Rights in Scotland were introduced by the Succession (Scotland) Act 1964 and apply whether or not the deceased person made a Will. They are rights enjoyed by the surviving spouse or civil partner and children of the deceased to share in a proportion of the deceased’s moveable estate. The moveable estate is made up of everything that is, generally, not land and buildings. For example, this includes any cash, shares, investments and insurance policy proceeds.
A legal rights claim ensures that family members receive their entitled share of the deceased’s moveable estate. That share of the estate depends on whether there is a surviving spouse or civil partner and whether the deceased had any children.
- If the deceased was married or had a civil partner but no children, the surviving spouse or civil partner is entitled to one half of the moveable estate.
- If the deceased was married or had a civil partner and had children, the surviving spouse or civil partner is entitled to a one third share in the moveable estate. The children are also entitled to a one third share in the moveable estate. The children will share that one third share in the moveable estate equally amongst them.
- If the deceased was unmarried or divorced or did not have a civil partner, the children are entitled to a one half share in the moveable estate equally amongst them.
Legal Rights in Scotland will use up a proportion of the moveable estate. In situations where the deceased is survived by a spouse or civil partner and children, two thirds of the moveable estate will be allocated amongst them. Where the deceased is survived by only a spouse or civil partner or by children, one half of the moveable estate will be allocated to them.
How long do you have to claim Legal Rights in Scotland?
It is also important to note that Legal Rights can be claimed for up to 20 years from the date of the deceased’s death. That means whoever is dealing with the estate must make provision for Legal Rights of children who are minors or who cannot be traced. Importantly, if an executor distributes the estate but fails to take account of Legal Rights, they may be personally liable to settle any Legal Rights claims.
There are, however, additional rights the surviving spouse or civil partner enjoys if there is no Will and the deceased died intestate. These rights are called Prior Rights.
What are Prior Rights in Scotland?
Prior Rights in Scotland are automatic rights a surviving spouse or civil partner has to share in the estate of their deceased spouse or civil partner who died intestate. These rights take precedence over Legal Rights and must be settled before Legal Rights can be addressed.
Prior Rights relate to certain aspects of the estate to which the surviving spouse or civil partner is entitled. These are:
- The family home (up to a value of £473,000)
- The furniture and contents in the family home (up to a value of £29,000)
- The first £89,000 of estate if there are no children or £50,000 if there are children.
Prior Rights must be settled first, along with any funeral expenses, before Legal Rights can be addressed. It is important to note that if the Prior Rights exhaust the available estate, there will be nothing available for Legal Rights.
How is the remainder of the estate distributed?
Where there is a Will, Prior Rights do not apply and, after satisfaction of Legal Rights, the remaining estate is shared out in accordance with the directions in the Will.
Where the deceased died intestate (without a Will), the distribution of the estate will follow the law of succession. That means:
- Where there is a surviving spouse or civil partner but no children, the surviving spouse or civil partner will inherit the remaining estate.
- Where there are children but no surviving spouse or civil partner, the children inherit the remaining estate in addition to their Legal Rights.
- If there is a surviving spouse or civil partner and children, after satisfaction of Prior Rights and Legal Rights, the children inherit the remainder of the estate.
What happens with cohabiting couples who are unmarried partners?
The surviving partner where a couple were cohabiting but were unmarried partners has no automatic entitlement to share in the estate of their deceased partner.
If the deceased made a Will and had been previously married or been in a civil partnership but had not yet been divorced or the civil partnership dissolved, the spouse or civil partner and the deceased’s children would be entitled to Legal Rights. Thereafter, the estate is shared out as directed by the Will. If the deceased was never married or had been divorced but had children, the children are entitled to their legal rights and, thereafter, the estate is distributed in accordance with the directions in the Will. Finally, where the deceased was unmarried or had been divorced and did not have any children, Prior Rights and Legal Rights to not apply and the estate is distributed in accordance with the Will.
What happens if there’s no Will?
If the deceased did not make a Will and died intestate, if they had been previously married or in a civil partnership which had not been brought to an end by divorce or dissolution, the spouse or civil partner would be entitled to Prior Rights and Legal Rights. Any children would be entitled to Legal Rights. The distribution of the remainder of the estate follows the law of succession.
Similarly, if the deceased had never been married or had been married or in a civil partnership which had been terminated by divorce or dissolution and if there are children, the children would inherit the entire estate.
Where there is neither a former spouse or civil partner nor children, the estate would then be shared amongst the deceased’s blood relatives starting from parents and siblings before more distant relatives receive any share in the estate.
The cohabiting survivor receives nothing from an intestate estate.
In such circumstances, the only option available to the cohabiting survivor is to make an application to court seeking a share in the estate of the deceased. However, such an application must be made within six months of the deceased’s death.
Experienced Will and Estates Solicitors, Wishaw, Lanarkshire
This can be a very complex and complicated area of law, especially where there is a blended family. Our solicitors have many years of experience advising clients on preparation of their Wills and advising on estates. We provide these services in Motherwell and Wishaw, throughout Lanarkshire and across Scotland.
It is crucial to seek legal advice to ensure that your Will and estate are managed according to your wishes and legal requirements. If you would like to discuss preparing your Will or if this article has raised any questions or you would like to discuss your affairs, then please get in touch with us.
