Legal Rights of a Surviving Spouse or Civil Partner to a Share of the Estate
In Scotland when a person dies, if they are survived by a husband, wife or civil partner, that person can make a claim for a share of the deceased’s assets.
There are two types of claim available. One is Prior Rights (see Prior Rights) and the other is Legal Rights. Here, we are dealing with Legal Rights.
When can a claim for Legal Rights be made?
Legal rights can be claimed whether or not the deceased had made a Will.
The claim can only be made against “net moveable estate” – i.e. after payment of debts and funeral expenses, everything that is not land and buildings. This could include bank accounts, savings, investments and other non-cash assets such as jewellery or motor cars.
How much can be claimed?
The amount that can be claimed depends on whether the deceased was also survived by children (including adopted children).
Where the deceased dies and is survived by a husband, wife or civil partner and children then the spouse or civil partner can claim one-third of the net moveable estate.
Where the deceased dies and did not have children then any surviving husband, wife or civil partner can claim a one-half share of the net moveable estate.
When calculating the value of the estate, allowable debts such as funeral expenses and also Prior Rights are deducted before the division is made.
If the husband, wife or civil partner has been left a bequest in the Will either as a legacy (as a specific amount or as an asset) or a share of the residue (the amount available after payment of debts and legacies) then they must choose either their legal rights or the bequest under the Will as they cannot take both.
If the deceased did not have a Will and was survived by a husband, wife or civil partner and children then the balance after debts, Prior Rights and Legal Rights would be divided among the children.
If the deceased died without leaving a Will but was survived by a husband, wife or civil partner (with no children) then after debts, Prior Rights and Legal Rights the balance would be payable to the husband, wife or civil partner.
Get in touch with us for further information
Get in touch with us if you have any questions about a situation involving the potential application of Legal Rights and / or Prior Rights. All initial enquiries are free of charge and without obligation. Contact a member of our “Private Client” team via 01343 544077 (Elgin) or 01309 672126 (Forres) or send us a Free Online Enquiry. You can also use the online enquiry form to request a call-back from us by telephone.