As we wrote in our articles of 26 November 2018 and 20 March 2019, the Scottish Government intends to update the rules on what should happen if someone dies intestate (without a Will), in an attempt to fairly reflect a diverse and modern society.
The current rules of intestacy are as follows:
1. After debts have been paid, a surviving spouse/civil partner has “prior rights” consisting of:
2. After prior rights have been met, the surviving spouse/civil partner has a “legal right” to a one-third share of the net moveable estate if there are no children or one-half if there are children. The children share either one-half or one-third of the net moveable estate, depending on whether there is a surviving spouse/civil partner.
3. What remains of the estate is then distributed in accordance with rules largely unchanged since 1964. If there are no children, surviving parents or siblings take priority over a surviving spouse/civil partner. This can come as a surprise, as there is a misconception that the law favours the surviving spouse/civil partner over other relatives.
It should also be made clear that cohabitants have no automatic rights over their deceased partner’s estate. If they do wish to claim something, they have to apply to the courts within a six-month time frame and anything they may be awarded is at the judge’s discretion.
Our article of 20 March 2019 explained the proposals for reform, as there is a general consensus that the rules are outdated and are not best placed to reflect ‘blended’ families accurately.
There was a Consultation carried out by the Scottish Government in the spring of 2019, which put to the public a choice of renewed intestacy models, taking inspiration from various jurisdictions including British Columbia and Washington State. The Scottish Government recently published a response to that Consultation.
The responses to the Consultation showed that around two thirds agreed that cohabitants should have to continue to apply to the courts to be able to benefit from their deceased partner’s estate. It is, of course, not uncommon for couples to live together without being married or in a civil partnership and so there was a broad view that cohabitants should be given greater rights. The law in relation to cohabitants generally is subject to a separate ongoing review and changes are likely to be forthcoming in that regard.
There were greater levels of agreement for other, more specific but relatively minor, points including problems which arise from personal data being made public following a grant of confirmation. These issues will be legislated for in future.
On the fundamental issue of how to divide assets among a surviving spouse/civil partner, children and other family members, it appears that none of the models of reform suggested were supported by a majority of respondents. The Government therefore proposes to undertake further research and it is clear that it will be some time yet before any significant changes to the law are made.
All of the uncertainty further highlights the importance of making a Will, which would remove all of the areas of unknown which are subject to change.
If you have any questions about the issues covered here, or you would like to discuss making a Will, estate planning, or the executry of an estate, then please get in touch with our specialist solicitors, on 0131 341 3741 or complete our contact form.
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