Citizen Participation and Public Petitions Committee
Scottish Government submission of 27 October 2021
PE1904/A - Change Scots law to disqualify estranged spouses from making claims on an estate
The Scottish Government has carried out consultation in recent years to keep the law of succession under review. In situations where a spouse or civil partner dies intestate, then the surviving spouse or civil partner has prior rights to the estate, which can include property and furnishings up to a certain value. In addition the surviving spouse or civil partner has rights to the moveable estate, and the amount depends on whether the deceased person left children or descendants such as grandchildren. If there are children or descendants then the surviving spouse or civil partner is entitled to the first £50,000 out of the estate. The entitlement is to the first £89,000 where there are no children or descendants.
Where parties have chosen to separate but not to pursue a divorce then legally they are still married. Accordingly the surviving spouse has rights to the estate. It is marital status which informs how an estate is distributed. Parties have the option to enter into a settlement agreement prior to any grant of divorce, which may deal with any rights of succession. As prior rights can only be claimed from intestate estate, another way to prevent a claim of prior rights in these circumstances is for an estranged spouse or civil partner to prepare a valid will.
In line with recommendations made by the Scottish Law Commission, the law was changed in 2016 so that any provision in a will in favour of an ex-spouse/civil partner is revoked on divorce - this is on the assumption that a testator would not want an ex-spouse or ex-civil partner to inherit. Previously divorce had no effect on a will in Scotland.
The Scottish Government’s most recent consultation paper in 2019 focussed on intestacy and the response to the consultation was published in May 2020. It can be accessed at:
https://www.gov.scot/publications/scottish-government-response-consultation-law-succession
One of the areas where views were sought was on extending an alternative approach to cohabitants, to test whether views on the rights of cohabitants’ rights on intestacy have shifted. The term cohabitants in this situation refers to couples who live together as though they were married or in a civil partnership but have not formalised their relationship in this way.
In considering whether to base rights on whether a couple are or are not living together, account needs to be taken for example, of those couples where one may live for many years in a care setting away from their home or where one works abroad and therefore lives predominantly abroad, but there is nevertheless a strong and enduring relationship.
While the law of succession affects everyone it can also divide opinion. It is because it affects everyone that there must be some degree of consensus on what reforms will deliver outcomes that are appropriate for the majority of people in Scotland, and in line with their expectations. The Scottish Government intends to carry out more research on the law on intestate succession and will continue to keep the law of succession under review in the light of these findings.