What are my legal rights in Scotland?
Rights of Spouse or Civil Partners
Under Scottish law, a surviving spouse or civil partner and children are entitled to certain "legal right" out of the deceased person's ‘moveable estate’. Moveable property includes such things as money, shares, cars, furniture and jewellery whilst ‘heritable property’ means land and buildings.
These legal rights are a distinctive feature of Scottish law and would apply whether a person dies testate (having made a Will) or intestate (having no Will). Legal rights are based on the principle of protecting family members from being disinherited. These rights cannot be defeated by the existence of a Will which makes a limited, or no provision for a spouse, civil partner or children.
This concept of legal rights does not extend to unmarried partners or cohabitees (however, a cohabitee is able to make an application to the courts for a share of their deceased partner’s estate where there was no Will).
If a Will contains legacies in favour of a spouse, civil partner and/or children then this would not prevent a claim from being made. However, that person would have to choose between the legacy and their legal rights, they would not be able to benefit from both.
If a claim is made then the value of that claim would be based upon the value of the net moveable estate. A legal rights claim cannot be made against heritable property. Where a surviving spouse makes a claim then that spouse would be entitled to a one third share of the net moveable estate if there are also surviving children (or descendants of children). If there are no children (or descendants of children) then that spouse would be entitled to a one half share of the net moveable estate.
Rights of Children
Children are, collectively, entitled to a one third share of the net moveable estate if the deceased has a surviving spouse or civil partner. If there is no such spouse or civil partner then those children would, collectively, be entitled to a one half share of the net moveable estate.
As already stated legal rights arise automatically. They can only be extinguished if they are discharged during the lifetime of the deceased, or if they are renounced by beneficiaries after death, or if they have not been claimed within twenty years of the date of death of the deceased.
The Succession Scotland Act allows for the issue of a predeceasing claimant to step into their shoes and inherit on behalf of their parent. Adopted children and illegitimate children have the same legal rights as natural children to the estate of a deceased person. It should be noted that adopted children only have rights of the estate of their adoptive parents and not that of their natural parents.
The position in England and Wales differs to that in Scotland. In England and Wales there is no automatic entitlement to the estate of a deceased person where they have left a Will. However, certain family members and dependants can make a claim under the Inheritance (Provision for Family and Dependants) Act 1975 in order to benefit from an estate in both testate and intestate succession.