When someone dies intestate (i.e. without a Will), there is an expectation amongst the general public that a surviving spouse or civil partner will inherit that person’s whole estate. This is not always the case and, often, the distribution of an intestate estate can throw up unexpected results.
Previously, the legislation which set out the rules for dividing up the intestate estate, was contained in the Succession (Scotland) Act 1964. The spouse/civil partner would get first bite at the cherry up to very precise financial limits, known as Prior Rights. They were also entitled to Legal Rights in the estate based on a proportion of the deceased’s cash estate.
However, if the deceased was worth more than the surviving spouse or civil partner’s Prior and Legal Rights, there was a ranking order setting out who inherited the rest. Understandably, if there were children, they inherited the rest of the estate. Where there were no children, the parents and siblings of the deceased were on the next rung of the ladder.
If a married/civil partnered person died intestate with no children, it was possible that their spouse/civil partner would receive Prior and Legal Rights in the estate, but everything else would have gone to the deceased person’s parents and siblings.
Not any more!
The section of the Trusts and Succession (Scotland) Act 2024 which deals with rights of succession in an intestate estate came into force on 30 April 2024. Now, if a married/civil partnered person dies intestate with no children, the surviving spouse or civil partner will inherit everything. They effectively swap places with the deceased person’s parents and siblings in the ranking order.
So far, so good. This all seems to tie in with general expectations and with changes in family structures since the old law was put in place 60 years ago.
However, what about the scenario where a childless couple, whether married or in a civil partnership, break up? If they divorce, dissolve the civil partnership or sign a separation agreement, there are no problems. The deceased’s estate will go to their parents and siblings, or further down the ranking order if they are not survived by any parents or siblings.
If the couple never get round to finalizing their separation, whether by way of a divorce, dissolution of the civil partnership or separation agreement, there is now the very real prospect that the surviving spouse/civil partner will inherit everything.
There is a very simple solution to all of this and a way to avoid the risks. Get a Will! If you prepare a Will, you take control of the distribution of your assets after your death. You decide who inherits what and can appoint someone to deal with the administration required to wind up your affairs.
Avoid the potential issue which may arise if you die without a Will.
Contact our Private Client team to start the process of getting your Will drafted.
Tel: 0131 622 2626 E-mail: enquiries@vmh.co.uk