It’s a common misconception that on the death of a spouse/civil partner the surviving spouse or civil partner inherits the entirety of their estate, unless they have a Will that is to the contrary. However, the reality is that distributing the estate of someone who has died without a Will is not straightforward.
When a person dies in Scotland without having left a Will their estate is distributed in line with the rules of intestacy and as such may not be distributed in line with that persons intentions. The surviving spouse or civil partner will be entitled to “Prior Rights”. This means they would inherit the deceased’s interest in their house, but only if they are ordinarily resident there, up to a value of £473,000; furniture up to a value of £29,000 and an entitlement of up to £50,000 cash (if there are children) or £89,000 if there are no children.
These “Prior Rights” can exhaust the estate but should there be any estate left the spouse/civil partner and any children are entitled to Legal Rights. If there are children then the spouse/civil partner is entitled to a further one-third of the moveable estate, with the children entitled to a one-third share split between them, or one-half if there are no children. Moveable estate is any estate which is not property.
Anything left after satisfying Prior and Legal rights is known as the free estate and would be distributed in accordance with the Succession (Scotland) Act 1964. If there are children of the marriage/civil partnership then the remaining estate would be split equally among them but if there are no children then the remainder of the estate could be split among parents or siblings of the deceased.
According to a YouGov poll nearly two thirds of adults in the United Kingdom don’t have a Will and for many the rules of Intestacy are a mystery. The most effective way to ensure your estate goes to the people you want it to go to and to avoid potential difficulties is to make a Will.