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Explained: The Rights of Spouses, Civil Partners and Children.

There are unique features of Scottish Succession Law known as ‘prior rights’ and ‘legal rights’. These rights are used to help protect spouses and children from being disinherited by their spouse or parent. These rights entitle a spouse and children to claim a set portion of the deceased’s estate – regardless of whether or not the deceased left a Will which excludes them.


PRIOR RIGHTS

Prior rights are the highest level of rights available against a deceased person’s estate, they come after all debts are removed, but before everything else, even before the rights of children. Prior rights are those available only to the spouses or registered civil partners of the deceased person. Scots law has made strides in recent years towards recognising and granting more rights to cohabitants however, as it stands they do not have a legal right to a person’s estate the same way spouses, civil partners and children do.


Prior rights entitles a spouse or civil partner to the following:

  • A dwellinghouse that the surviving spouse has lived in, up to the value of £473,000

  • Any furniture and furnishings in that dwellinghouse up to the max value of £29,000

  • A cash sum of £50,000 if there are children and £89,000 if there are no children

LEGAL RIGHTS

Children too have a right to an estate, this is known as legal rights and only biological or adopted children have this right. This comes after prior rights and if prior rights have exhausted the whole estate then the children would be entitled to nothing. If there is anything remaining or there is no spouse or civil partner, children are entitled to the following:

  • 1/3 of the moveable estate if there is a surviving spouse, split equally between however many children the deceased person has

  • 1/2 of the moveable estate if there is no surviving spouse, split equally between however many children the deceased person has

Moveable estate essentially consists of all things that are not land or property, so it would be everything from jewellery to furniture to cash, investments, back accounts etc. Children do not have a legal right to any land or property.

It is important to note that a child’s entitlement is divided amongst however many children the deceased person has. For example, if the deceased person was married and had three children, each child would be entitled to 1/6, as the 1/3 must be divided by the three children.


DO GRANDCHILDREN HAVE LEGAL RIGHTS?

It can become a little more complex when it comes to grandchildren. There is legal standing that if the deceased person had a child who predeceased them and that child had children of their own (this would be the legal or biological grandchildren of the deceased person), these grandchildren could make a claim for their parents entitlement as their parent has passed away.


WHAT HAPPENS TO MY WILL IF SOMEONE CLAIMS AND IS SUCCESSFUL?

If a person claims against an estate, their entitlement would be calculated, taken off of the estate and the remaining estate would be divided in accordance with the Will.


DO THESE RIGHTS STOP ME FROM WRITING CERTAIN PEOPLE OUT OF MY WILL?

In Scotland it is said that you cannot disinherit a spouse, civil partner or child. This is just because laws are there to protect those people’s right. You can absolutely choose not to include certain people in your Will and no one can stop you from not including them, but just be aware they have a claim and have legal grounds to contest.


CAN A SPOUSE, CIVIL PARTNER OR CHILD STILL CONTEST IF THEY ARE NAMED IN MY WILL?

A spouse, civil partner or child can still claim against the estate even if they are left something in the Will however, they will not get their gift from the Will and their rights, they have to choose one or the other. Therefore, a person named in the Will would most likely only contest it if their prior or legal rights entitles them to more than what they have been gifted in the Will. Ultimately a claim for prior or legal rights cannot be defeated by naming the person in the Will and gifting them something small.


DO I NEED TO INFORM THE DISINHERITED PARTY THAT THEY ARE BEING DISINHERITIED?

The duty to inform a person who has prior or legal rights of those rights lies with the executors. They have a duty to take all reasonable steps to reach out and inform the parties, if they do not do this, the estate is paid out and a subsequent claim is brought, an executor can be held personally liable.


HOW LONG DO A SPOUSE, CIVIL PARTNER OR CHILD HAVE TO CLAIM THEIR RIGHTS?

Prior and legal rights can be claimed up to 20 years after the deceased person has passed away. If an executor has been unable to make contact with someone who holds these rights, or is unsure if they will claim, it is common practice to hold part of the estate that they would be entitled to, just in case a claim is brought later on.

NEED MORE INFORMATION?

If you would like more information regarding how prior and legal rights will affect your Will, get in touch with us today and we can have one of our highly trained team discuss this with you.

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