My spouse has died without making a Will – what are my rights?

Any death in the family is traumatic. When it happens to your spouse, it can be devastating. This whole situation can be made even more upsetting and expensive if your spouse died without leaving a Will.

What happens if there is no Will?

When someone dies without a Will, their estate will be intestate. The estate then needs to be dealt with under the laws of succession in Scotland. These are largely contained in the Succession (Scotland) Act 1964 and the Succession (Scotland) Act 2016. The 1964 Act completely changed the way in which estates in Scotland are dealt with. It also governs how Prior Rights and Legal Rights of surviving spouses and children of the deceased are dealt with.

The 1964 Act also set down how intestate estates in Scotland are dealt with. When there is no Will, the surviving spouse must make an application to the sheriff court to be appointed executor. The executor is the person responsible for establishing the extent of the estate, ingathering, and then distributing it. This stage must take place before anyone can properly deal with the estate. This inevitably leads to delay and adds to the cost.

In addition to setting down the methods of dealing with the estate, the 1964 Act also introduced Prior Rights and Legal Rights. Only spouses enjoy Prior Rights whilst spouses and children enjoy Legal Rights.

What is your entitlement when there is no Will?

Where there is no Will, a surviving spouse is entitled to both Prior Rights and Legal Rights.

Prior Rights

Prior rights take precedence over Legal Rights. The Prior Rights a surviving spouse is entitled to are as follows:

•    The family home (up to the value of £473,000);
•    The furniture and furnishings in the family home (up to the value of £29,000); and
•    £50,000 in cash or cash equivalents if there are surviving children or £89,000 where there are no surviving children.

In a situation where the Prior Rights exhaust the estate, there will be nothing available for distribution under Legal Rights of either the spouse or any children. In other words, the spouse would inherit the entire estate.

Legal Rights

Both the surviving spouse and any children of the deceased are entitled to Legal Rights. These are only available in relation to the moveable estate of the deceased. The moveable estate is usually made up of anything that is not land and buildings.
In addition to Prior Rights, the surviving spouse is entitled to one third of the moveable estate. Any children (or their descendants) would also be entitled to one third of the moveable estate to be shared equally amongst them. That then leaves what is known as the “free estate” or “dead’s part” and where there are children, they will inherit that too, whether it’s heritable or moveable.

Legal Rights can be complex. This means the estate may be distributed in ways you might not expect. You will find a very useful flow-chart on the distribution of an intestate estate on The Gazette website.

Do civil partners have the same rights as spouses?

In Scotland, civil partners have the same rights as married couples. However, if you are cohabiting and are neither married nor in a civil partnership, the surviving partner has no automatic right to succeed to any part of the estate.

How would things be different with a Will?

If the deceased spouse made a Will, the surviving spouse would not be entitled to any Prior Rights. They would continue to be entitled to Legal Rights along with any children and, once these were exhausted, to whatever further estate was bequeathed to them in the Will.

Why is it important to make a Will?

It is important to make a Will to ensure that you decide who should share in your estate after your death. You cannot rely on the law of succession distributing your estate in the way you might wish.

Specialist Will writing solicitors in North Berwick & Dunbar, East Lothian

Here at Paris Steele Law, we have solicitors who deal with Wills and estates for clients in North Berwick and Dunbar, East Lothian, Edinburgh and across Scotland every day. They have specialised in providing advice to clients wishing to make their Wills over many years.

If you would like to prepare a Will or, if you already have a Will and wish to make changes to it, please don’t delay in contacting us.