The Scottish Government has been considering possible changes to Scottish Succession Law for a number of years and recently published an important update to their intentions.
In particular, the Government has announced a programme of reform to the laws of Intestacy. The major change to note is that when an individual dies intestate (i.e. without a Will) and is survived by either a spouse only or children only then the whole estate will be inherited by the surviving spouse or issue. This change will be implemented in future succession legislation.
This is a significant change from the current rules of Intestacy. For example, under the current system where there is a surviving spouse only, their claim to the estate is restricted to prior rights and legal rights. Prior rights relate only to the matrimonial home and contents, plus a limited cash sum. Legal rights in this instance would be a claim to half the moveable estate. After these rights are claimed, the remaining estate would pass to surviving parents or siblings of the deceased.
Importantly, the Government has also decided the distinction between heritable and moveable property will be continued. This is quite the change as the government had previously been in favour of removing the distinction. This news will be welcomed particularly by the Scottish agricultural community who can continue to leave their farms to whomever they wish in their Wills, with any claim of legal rights unable to impact the passing of such heritable property in accordance with the deceased’s wishes.
We now await the outcome of the government’s further consultation on how to deal with the situation where the deceased dies intestate and there is both a surviving spouse and children. It is proving difficult to obtain consensus on a fair division of the estate in those circumstances. There is also to be a further consultation on cohabitants' rights against an intestate estate which may see a change to the current six-month deadline for lodging a claim. For now, the Government has confirmed that cohabitants will continue to have no right to claim from the estate when the deceased left a Will.
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