Many couples who plan to divorce live separately for several years. Also, some married couples do not intend to divorce or reconcile and simply live as estranged partners for the rest of their lives. However, staying married to a partner with whom you are no longer in a relationship may have unintended consequences for your estate.
If you do not have a Will, your estate will be distributed in line with the laws of “intestacy”. In these circumstances, the law makes no distinction between a happily married couple and those who have lived apart for years. Your estranged spouse could be entitled to the majority of your estate - even if you have a new partner. In this article, we look at what happens when you pass away while still married to an estranged spouse and how you can ensure that your estate is distributed as you would have wished.
Can a spouse or civil partner claim legal rights if we are separated?
Both spouses and registered civil partners can claim “legal rights” in Scotland. Crucially, this includes spouses and partners who are now estranged or separated from the person who has passed away. Legal rights are a claim to a set share of your estate on death irrespective of whether or not you have a Will in place.
However, many separated partners choose to include a provision in a separation agreement, which waives their right to make a legal rights claim against the other’s estate. Once the separation agreement is legally binding, a former spouse or civil partner may no longer bring a claim for legal rights.
How to avoid claims and confusion
The most straightforward way to ensure that your estranged spouse cannot inherit from your estate if you do not want them to, is to put your affairs in order through estate planning. If you do not have a Will, you should make a Will setting out who you wish to inherit from your estate. If you do have an existing Will, you should update your Will to reflect your new circumstances. Some people include a former partner in their Will, even if they do not want them to be their main beneficiary.
Discharging legal rights
If you do not wish to go through the divorce or dissolution process, you can have your spouse discharge their legal rights. The effect of discharging legal rights is that the person who has discharged their rights is treated as if they predeceased their former partner. Modern family structures can be complex, but our advisors can help you to plan for the future whatever your circumstances.
Specialist Wills Solicitors, Edinburgh
Murray Beith Murray Partner, Andrew Paterson, is a specialist in Will writing, estate planning and asset protection. If this blog has raised any questions or you have a matter to discuss please get in touch using the enquiry form or call on 0131 225 1200.
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