Where a person dies without making a Will they are said to have
died "intestate". In terms of Scots Law a surviving spouse or
civil partner of a person who has died intestate is entitled to
prior rights in the deceased's estate. As from 1 February 2012
these prior rights have substantially increased.
These consist of three elements:-
1 Right to a Home
In terms of the revised rules if the surviving spouse or civil
partner was ordinarily resident in a property owned by the
deceased, if the deceased's property or their share in it had a
value of less than £473,000, then the surviving spouse or civil
partner will become entitled to it, or if the value of it was in
excess of that sum then the surviving spouse or civil partner will
become entitled to a cash sum of £473,000. This does not
apply to any second home which falls into the remainder of the
estate as referred to below. Sometimes the title deeds to a
home stop the prior rights from applying.
2 Contents
The surviving spouse or civil partner has a right to the
contents of a house where they were ordinarily resident at the
deceased's date of death. The maximum value of the contents
that can be claimed is £29,000. If there is more than one
house, the contents can only be claimed from one.
3 Cash Sum
In addition they can claim a cash sum of £89,000 if the deceased
had no children or other issue, or £50,000 if they did.
As recently as March 1999 the financial entitlement to a home
was capped at £130,000. In the intervening years inflation
has increased by 45% but the cap has increased by 360%. In
part this reflects the higher house price inflation, but also
reflects a wish on behalf of the Government to give greater
protection to the surviving spouse to the detriment of others,
usually the surviving children.
Remainder of Estate
If there is any estate which is in excess of the prior rights
then the excess may be distributed to the surviving children,
potentially to other issue, and to the surviving spouse or civil
partner in terms of their "legal rights" with the balance being
made over to those entitled to the "free estate" in terms of the
Scots law of succession. We shall issue a further briefing
note on these issues shortly.
While Prior Rights do provide a limited safety net for surviving
spouses or civil partners, they are a relatively blunt tool and
often do not reflect a deceased's wishes. It is therefore
prudent to seek expert advice to prepare an appropriate Will to
fully reflect your wishes.