Where someone dies without making a Will, the Succession (Scotland) Act 1964 ("the 1964 Act") provides that the deceased’s spouse or civil partner has specific rights in their estate, known as Prior Rights.
Prior Rights rank above all other entitlements in an estate, including the rights of children. The deceased may also have had a cohabitee if they were separated from their spouse. In those circumstances, the spouses claim to Prior Rights ranks above any claim by the cohabitee for a share of their deceased partner's estate under section 29 of the Family Law (Scotland) Act 2006 ("the 2006 Act").
What is the Spouse's Claim?
For deaths on or after 1 February 2012, spouses and civil partners of a deceased person are entitled to the following Prior Rights on intestacy:
- a dwelling house in which the surviving spouse or civil partner lived up to the value of £473,000;
- furniture and furnishings in that dwelling house up to a maximum total value of £29,000; and
- a payment of a cash sum of £50,000 if the deceased also had children or £89,000 if the deceased did not have children.
Therefore, the total entitlement for spouses and civil partners amounts to £552,000.
Spouses and Children can then claim their Legal Rights. Where a spouse survives the deceased, Legal Rights amount to a one third share for the spouse and a one third share for the children between them of the moveable estate (i.e. all assets except the house) which is left after the satisfaction of the above Prior Rights.
Unlike Prior Rights, Legal Rights exist even if there is a Will, showing that it is not possible to completely disinherit your spouse unless you enter into a Separation Agreement or Divorce when your relationship ends. It is also possible for children to opt out of their Legal Rights either during your lifetime or after you die, but much will depend on the circumstances as to whether they choose to do that.
What About the Rest?
The final one third of the moveable estate and any other share of land and buildings left after Prior Rights and Legal Rights have been settled will pass to the children, if there are any. If not, the 1964 Act lists who will inherit, starting with parents and siblings of the deceased and going further down the family tree after that. The spouse does feature on that list but quite far down.
However, this is also the portion in which that the cohabitee can apply to the Court to make a claim under the 2006 Act. Frequently, there will be little or nothing left over for such a claim, meaning that it is very important to make a Will to ensure that your partner will benefit from your estate. .
As the majority of estates are likely to fall short of the Prior Rights limits, not having a Will could prove disastrous for your children, particularly if your spouse is not their parent.
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