Legal Rights In Scotland - What you need to know 

Under Scots Law, as per the Succession (Scotland) Act 1964, Legal Rights are an entitlement available to a spouse, civil partner and children of the deceased, no matter if they die with a will (testate) or without a Will (intestate), to a share of the deceased’s worldwide net moveable estate.

In this article we look to provide you with clarity over questions that commonly arise when discussing legal rights with clients:

1. What are legal rights?
2. How much is the share that a spouse/civil partner or child can claim?
3. Are adopted children entitled to legal rights?
4. Are stepchildren entitled to legal rights?
5. Are cohabitees entitled to legal rights?
6. Representation – legal rights
7. Difference between the rest of the UK and Scotland
8. Domicile and legal rights
9. To claim or discharge legal rights?
10. Can you mitigate how much your children can claim?

What are legal rights?

Legal rights exist in Scotland because Scots Law provides that no spouse, civil partner or child should be fully disinherited by their family. There is the underlying principle that a surviving spouse or civil partner and children of the deceased should be protected from disinheritance.

Legal rights come to effect no matter if you have a Will or not. However, if a person has an entitlement under your Will as well as their legal rights entitlement, they can only choose to claim one or the other and cannot claim both.

Legal Rights are seen as a debt against the estate and therefore must be paid before any legacy or payment is made from the Will to a beneficiary.

Legal rights include the worldwide net moveable estate only of the deceased and includes cash, shareholdings, personal effects and furniture, cars etc. Legal rights does not include heritable estate such as land and buildings. A Legal rights claim can be made only against the moveable estate of the deceased. Heritable property is not currently included in the legal rights calculation however the Scottish Law Commission may look to change this in the future.

How much is the share that a spouse/civil partner or child can claim?

In the event the deceased’s left children then the surviving spouse or civil partner are entitled to one-third of the deceased’s moveable estate. If the deceased’s left no children or grandchildren then the spouse is entitled to one-half of the deceased’s moveable estate.

If multiple children or grandchildren are left by the deceased and there is a surviving spouse or civil partner then the children or grandchildren are entitled to a share of one-third of the deceased’s moveable estate. If there is no surviving spouse or civil partner then the children or grandchildren are entitled to a share of one-half of the deceased’s moveable estate.

Are adopted children entitled to legal rights?

Yes, under section 23 of the Succession (Scotland) Act 1964, adopted children have the same legal rights as biological children to the estate of their deceased parent. However, adopted children will not be able to make a legal rights claim against their biological parent’s estate. They would only be able to claim their legal rights in their adoptive parent’s estate.

Are step-children entitled to legal rights?

No, Step-children do not have any legal right to a step-parent’s estate, and nor has it been proposed that the law should change regarding this. If step-parent wishes to leave any part of their estate to their step-child they would have to express this in writing by making a Will.

Are cohabitees entitled to legal rights?

No, Cohabitees are not entitled to claim legal rights against their deceased cohabitee’s estate. Moreover, Cohabitees do not have an automatic right to a share in the estate of the deceased no matter how long they resided together for as a couple. However, Cohabitees can apply to the Sheriff Court to make a financial claim against their late partner’s estate however there are requirements that they must meet in order to do this and there is no guarantee for a successful claim.

Representation – legal rights

The Succession (Scotland) Act 1964 provides that if an adult child has died before their parent, their children can then make a legal rights claim in place of their late parent. This is called Representation and this also applies to adopted children of the deceased as well.

Difference between the rest of the UK and Scotland

In England, Wales and Northern Ireland no spouse, civil partner or child has an automatic right to a share of the estate. England, Wales and Northern Ireland do still have their own models of distribution of an estate, where claims can still be made to the court against an estate by a spouse, civil partner or child who may argue that the deceased’s Will has not made “reasonable” financial provision for them. This is however is unlike Scots Law, which operates on the basis that legal rights are an automatic right and there is no requirement to apply to the Sheriff Court.

Domicile and legal rights

A person’s domicile will affect whether legal rights can be claimed on their estate. A person must be deemed domiciled in Scotland for legal rights to apply. Therefore, it is important to determine a person’s domicile from the outset of administration of the estate. If there are any questions over a person’s domicile, legal advice should be sought.

To claim or discharge legal rights?

Legal rights can be claimed for up to 20 years from date of death. This means that as long as a person’s legal rights have not been formally discharged in writing, as discussed below, a person can make a claim against the estate for up to 20 years.

An Executor of an estate, a person nominated in a Will to disburse the estate as per the testator’s wishes, is legally obliged to disburse the estate under Scots Law. This includes advising any spouse, civil partner or child of the deceased, whether said child is estranged or not from the deceased, that they are entitled to make a claim for their legal rights against the estate of the deceased. An executor may be personally liable to pay the legal rights entitlement to the claimant if they have already released the estate funds to other beneficiaries. It is important to seek legal advice as an Executor.

There is no obligation on a spouse, civil partner or child (or grandchild if parent is deceased) to claim their legal rights. They can formally discharge their legal rights. A Discharge document renouncing a legal rights claim can be signed either before or after the death. If a spouse, civil partner or child signs the discharge before the deceased’s death, they are then deemed to have died before the deceased. If a Discharge is signed after the deceased’s death, the person discharging their legal rights is not deemed to have died before the deceased. There could be potential tax implications from a decision to claim or discharge your legal rights.

Can you mitigate how much your children can claim?

As it stands at the moment, heritable property is not included in the legal rights calculation. One way to mitigate a legal rights claim is to only have heritable property however this is very impractical and not recommended. There may be other options available to you such as setting up a trust however this depends on the circumstances of each person’s estate. If you would like to discuss estate planning further please get in touch with our estate planning Solicitors.

Get in Touch With Our Solicitors

Dealing with the administration of an estate can be complex and you should seek guidance from a Solicitor if you find yourself needing advice whether as a testator of a Will, a legal rights claimant, a beneficiary of an estate, an executor of an estate or anyone who would like to discuss Scottish Law of Succession and Estate Planning.

Please contact our firm’s Forbes McLennan on 01224 563317 or Vivienne Bruce on 01224 563337 to provide them with details of your enquiry or complete our firm’s online enquiry form.