What are the legal rights of a surviving spouse or civil partner?

In Scotland, it is important to understand one not-so-well-known aspect of family inheritance.

When somebody passes away while domiciled in Scotland at the time of death, whether testate (with a will) or intestate (without a will), forced heirship rules will apply to their estate. These rules, covering assets including money, property and possessions, are known as “legal rights”. 

What are legal rights in Scotland?

Scottish law was codified in 1964 to make legal rights for spouses and children a clear feature of inheritance – mainly when the deceased has not left a will, but also for testate estates. Put very broadly, if a person with money or property makes and signs a will, this does not necessarily exclude anyone not mentioned in the will. The Succession (Scotland) Act 1964 allows the surviving spouse and children to make at least a partial claim on the estate. 

The law has since been updated so, in addition to husband and wife, civil partners also have rights. Illegitimate children later gained full legal rights in any parent’s estate. Scottish law also operates on the principle that legal rights are an automatic right and there is no requirement to apply to the Sheriff.

Legal rights are claimed from the deceased’s worldwide ‘moveable estate’ (which excludes property or land) after all moveable debts have been deducted. They are automatic, so an application to the court is not required. They are also considered a debt on the deceased’s estate in relation to beneficiaries, thereby taking priority over any legacies included in a will. 

However, if the will includes provision for the person making a legal rights claim, then that person either has to accept this, or claim their legal rights. They cannot opt for both - it has to be one or the other, or neither. So, even if the will says “I do not want my husband to get a penny,” he can still claim legal rights. Furthermore, should the individual claiming legal rights accept any asset or share of the estate left to them in the will, it will be presumed they have discharged their legal rights claim.

Legal rights must be claimed within 20 years from the date of the deceased’s death. As a result,  executors should be cautious, as should the estate be distributed and a legal rights claim then come to light during these 20 years, they could find themselves personally liable to pay that claim.

What are surviving partners entitled to?

Simply put, if the deceased had no children, the surviving spouse or partner is entitled to half of the net moveable estate, including money, investments, insurance and shares (essentially everything other than home or property), once any estate debts are paid. If there are any surviving children, either with the bereaved spouse or from another relationship, then the share is a third.

The moveable estate is valued as of the date of death. The figure calculated falls to be reduced by the deduction of funeral expenses, inheritance tax, and any moveable debts due by the deceased as of the date of death (but excluding any heritable debts linked to land or property - such as a mortgage). Any legal expenses related to the winding up of the estate up to the point of obtaining confirmation are also deducted when calculating the net moveable estate.

Legal rights are a central topic for anyone married or in a civil partnership. Anyone making a will should discuss their family story and background with their solicitor, so the effects of the law can be clearly understood and reflected in the final document. 

Anyone requiring guidance on legal rights and wills should seek legal advice.

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