What are Legal Rights?
In Scotland, a person is unable to fully disinherit their spouse, civil partner, and/or children. A surviving spouse, civil partner, and children (including adopted children) are entitled to claim Legal Rights in Scotland on a deceased’s estate and can be claimed whether or not someone has a Will, however, a spouse, civil partner, or child/children cannot inherit from both the Will and claim their Legal Rights entitlement.
As the law stands at this time, Legal Rights can only be claimed on a deceased’s net moveable estate and therefore does not include heritable property (e.g. house or land) owned at the date of death.
How much will my Legal Rights entitlement be?
Legal Rights can be calculated in one of two ways, depending on the deceased’s family circumstances when they die:-
If the deceased died leaving a surviving spouse/civil partners (jus relicti/jus relictae) and children (legitim) then the amount available for Legal Rights to each category i.e. spouse/civil partner, and the children (collectively) is a one-third share respectively of the net moveable estate.
If the deceased died leaving either a spouse/civil partner or children, then the amount available for Legal Rights is a one-half share of the net moveable estate
Spouses and civil partners can claim Legal Rights even if they were separated from the deceased at the date of death.
Each child of a deceased has an equal claim and adopted children have the same claim as that of biological children under the law of Succession in Scotland. Legal rights cannot be claimed by step-children.
If a child of a deceased has passed away before their parent, their children would be entitled to make a claim against the deceased’s estate in place of their parent.
To claim or not to claim
It is entirely the decision of a spouse/civil partner or child as to whether they claim the executry estate. However, it is the responsibility of the Executor(s) to ensure that Legal Rights are dealt with at the time of winding up the deceased’s estate. Legal Rights can be claimed for 20 years from the time of the deceased’s death unless formally discharged. If a claim is made within 20 years of the deceased’s death and the estate has already been distributed, the Executor(s) may find themselves personally liable to the Legal Rights claimant. Therefore, the Executor(s) must keep a record of any receipt of payment of a claim or discharge of entitlement at the time of the executry administration.
It’s always worth remembering that the law in Scotland is constantly evolving and the matter of Legal Rights in Scotland was recently under review by the Scottish Governments. This is why it’s important to review your Will regularly and to consult your solicitor about estate planning so they can advise you on any changes in the law. If you would like to discuss the matter of Legal Rights further or review or update your Will then a member of our private client team at Innes Johnston would be happy to help.
We are available to assist you with your estate planning needs or to provide bereavement services to assist with executry estate administration following the death of a loved one.