Baa Baa Black Sheep, have you any rights?

9/27/2018

How the law in Scotland can allow unwanted beneficiaries the chance to receive an inheritance.

As solicitors, we encourage our clients to have up to date Wills in place detailing who should receive their estate when they die, and it remains the case that in most situations it is better to have a Will than not. There is however a concept in Scots Law that dictates, to a certain extent, who can receive your estate even if you have a Will. This is known as Legal Rights and these rights are available to a spouse/civil partner and children of the person who has died. The availability of Legal Rights means that a spouse/civil partner or children still have a right to part of an estate, even if the deceased did not include them in their Will. In amicable family situations this is unlikely to cause a problem, however it can be an unwanted surprise where, for example, there is a ‘black sheep’ of the family, there is a second marriage, or if a couple have separated but not formally divorced.

Who can make a claim?

 A Legal Rights claim is open to a spouse or civil partner of the person who has died but not to a cohabitant (i.e. partners who are living together as a married couple). As the law currently stands, a cohabitant does have some ability to make a claim on their partner’s estate but these rights are very limited, they are not guaranteed and they only exist if their partner did not leave a Will. If one of the partners, for example, has an old Will that was prepared before their current relationship started (and therefore does not include their new partner) that new partner could not make a claim on the estate and would receive nothing. Those who are cohabiting but are not married therefore need to make Wills and keep them up to date to ensure their partners will receive the intended share of their estate; otherwise their estate will pass to other family members, as set out in law.

Children (including adopted children) are also entitled to Legal Rights, but step-children and foster children are not. If a child dies before their parent leaving children of their own, those grandchildren can make a claim for Legal Rights in place of their parent.

How much can be claimed?

Legal Rights currently only applies to moveable estate – i.e. any part of a person’s estate that is not land or buildings (such as bank accounts, shareholdings, household contents etc). The Legal Rights fund is based on the net moveable estate which is calculated by adding up all of the moveable assets and deducting debts and expenses such as funeral costs, but debts attaching to a property (such as a mortgage) are not deducted.

A spouse/civil partner and children will either be entitled to a one-third share or a one-half share of the net moveable estate, depending on who else survives the deceased. The share available to children of the deceased is to be divided amongst all children in order to work out each individual child’s entitlement. The amount each child can claim does not increase even if other children choose not to make a claim.