Legal Rights are a distinctive feature of Scots Law designed to protect spouses and children from disinheritance. Recently we have seen an increasing number of queries relating to Legal Rights by those who wish to disinherit their spouses/children for a variety of reasons.
Legal Rights – What are they?
In brief terms, spouses and children (including adopted children) or the children of a predeceasing child can make a claim on the estate. The window within which a claim can be made extends to 20 years from the death. Spouses can claim one third of the net moveable estate (not land and property) in families with surviving children, and one half of the net moveable estate where there are no surviving children. The same applies for a child's claim. Children can claim one third of the net moveable estate between them where there is a surviving spouse, the claim increasing to one half where there is no surviving spouse.
Assets – Heritable or Moveable
Moveable estate comprises assets such as cash, shares and personal belongings. Any debts are first deducted from the value of the moveable assets. Moveable estate does not include any heritable property (e.g. a house, flat or land). There is however an exception to this where heritable property is held in a partnership.
Depending on the individuals' circumstances and particular assets it could be that there is only a very small claim available once all expenses (e.g. funeral costs etc) have been deducted, in some cases no claim at all. Currently, where an individuals' assets largely comprise of heritable property this should reduce the claim available.
Will my cohabitant have a Legal Rights claim?
Currently, a co-habitant does not have a claim on their partner's estate if the deceased left a Will. If the deceased did not leave a Will, the cohabitant may have a claim but it is not an automatic right and any award will be made at the discretion of the Court.
Can you defeat a legal rights claim?
Legal Rights are an automatic entitlement afforded to spouses and children and are therefore very difficult to defeat. It is however possible to reduce the value of a legal rights claim or incentivise the potential claimant to discharge their right. It is important to consider the possible options available as part of an estate planning exercise when preparing your Will. If you would like to explore the available options please get in touch with our Private Client team.
We're here to help
Should you wish to discuss making a Living Will, please do not hesitate to contact the Private Client team at Harper Macleod using the form below or call one of our offices on:
Elgin: 01343 542623
We have solicitors and offices across the country in Glasgow (next to Glasgow Central Station), Edinburgh (next to Haymarket Station), Inverness, Thurso, Elgin and Shetland - and working from home, ready to help in person or over the phone or on a zoom call.
We can provide the assistance you need to protect your assets and your loved ones. This will allow you to put your mind at ease, knowing everything is in hand.