Did you know that the law in Scotland provides that you cannot entirely disinherit your spouse, civil partner or child even if you do not include them in your Will? This is because we have what are known as legal rights.
What are legal rights?
Under Scots law, certain family members are entitled to legal rights when a person dies testate (with a Will) or intestate (without a Will). A surviving spouse, civil partner and children (including adopted children) can make a claim against your net moveable estate (i.e. they cannot make a claim on your heritable estate, being any land or property owned by you). Where a child has predeceased you, their own children can claim their parent’s share in the estate. Executors have a legal obligation to make any spouse, civil partner or child aware of their right to claim against the deceased’s estate.
Legal rights do not extend to unmarried partners or cohabitants. Where a cohabitant dies without a Will, the surviving cohabitant is able to make an application to the court for a share in the deceased’s estate, however this is not an automatic right and tight timescales apply, so legal advice should be sought at the earliest opportunity
What can be claimed?
As mentioned above, legal rights can be claimed against your net moveable estate. Moveable estate includes all of the deceased’s property other than land and buildings. The net value of the moveable estate is the total value of the moveable assets minus debts and other liabilities (i.e. funeral expenses, purvey, a proportion of legal expenses etc.). The value of the legal rights fund is dependent on who survives the deceased. If the deceased is survived by a spouse/civil partner and children, the legal rights available for the spouse amount to one third of the net moveable estate and the legal rights available for children also amount to one third of the net moveable estate. If the deceased is survived by only a spouse/civil partner or children, the legal rights available for the spouse or children are one half of the net moveable estate. The remaining estate will pass in accordance with the terms of the deceased’s Will. If the deceased did not leave a Will, the remaining estate will pass in accordance with the rules of intestate succession.
Discharge of legal rights
Individuals have discretion as to whether they wish to claim their legal rights. If they decide not to claim, then the legal rights fund will be divided between the remaining claimants as if the person agreeing to discharge their legal rights died before the deceased.
How long do I have to claim legal rights?
Legal rights can be claimed up to 20 years from date of death. Usually an Executor of an estate would establish at the time of winding up the deceased’s estate whether the surviving spouse/ civil partner and children intend to claim or discharge their legal rights. However, if this has not been done or it has not been possible to trace a potential claimant, funds should be held for 20 years in case of a future claim being made.
Additional rights of a surviving spouse/ civil partner
Where the deceased has died intestate (i.e. without a Will), there are other rights available to a surviving spouse/ civil partner. These are known as prior rights. They are the first claim on the deceased person’s estate and will often exhaust the deceased’s estate before any legal rights claim is made.
The surviving spouse or civil partner is entitled to:-
- House: up to the value of £473,000;
- Furniture: up to £29,000;
- Cash: £89,000 (where there are no children) or £50,000 (where there are children).
Should you wish to discuss any of the above please contact a member of our Private Client Team who will be happy to assist.