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Laws of intestacy could be changing in Scotland - but what is the current process?

The Scottish Government opened a consultation on the 17th February, asking the public how the laws surrounding succession could be fairer and more representative of 21st century Scotland. The consultation focuses on two key ideas – intestacy rules for surviving spouses/civil partners, and cohabitation rights.

While the consultation is currently open and available for response until the 10 May 2019, we thought it was important to highlight your rights under current legislation should a loved one die intestate.

Prior Rights

Under the current rules of intestacy, once debts and other liabilities have been paid from the estate, the surviving spouse or civil partner has certain prior rights. This is made up of:

  • the rights to a home in which s/he was resident at the time of the deceased’s death to a value of £473,000,
  • furnishings up to the value of £29,000,
  • the sum of either £50,000 or £89,000, depending on whether the deceased left children.

Legal Rights

Following on from prior rights on the estate is legal rights. Legal rights can only be claimed from the deceased’s moveable property, such as cars, furniture, jewellery and money. The surviving spouse of a civil partner has a constitutional right to one-third of a deceased’s moveable estate if there are children, or to one-half of the moveable estate if there are no children of the deceased. If there is no surviving spouse or civil partner, the children are entitled to share one-half of the moveable estate collectively, or one-third of the estate if the deceased left a surviving spouse or civil partner.

Other rights to an intestate estate

Once prior and legal rights have been satisfied, the remainder of the estate is then distributed following section 2 in the 1964 Act. In the absence of children, this will result in surviving parents or siblings taking priority over a surviving spouse or civil partner. It should be noted that, under current legislation, stepchildren have no rights to a step parent’s estate.

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