Legal Rights in Scotland

Even if you make a Will in Scotland, Legal Rights can still be claimed against the estate. They are an automatic entitlement and are rights to the payment of a sum, not to a particular asset.

Legal rights can only be claimed by surviving spouses or civil partners and by children, or grandchildren if their parent has died before them.

Legal rights do not extend to unmarried partners or cohabitants.

Essentially, this means there is no absolute way to disinherit a spouse, civil partner or children in Scotland.

Legal Rights are claimed against the net moveable (e.g. furniture and personal effects) estate. They are payable immediately after payment of debts, and any other appropriate expenses and before the residue is paid out to residuary beneficiaries.

If the testator is survived only by their spouse or civil partner, they can claim one-half of the moveable estate. The other half falls to the residuary estate.

If the testator is survived by a spouse or civil partner and children, the spouse can claim one-third, the children (as a collective if more than one) are entitled to one-third and the remaining falls to the residuary estate.

If the testator is not survived by a spouse or civil partner or children, there are no legal rights to be considered. The entire estate will be dealt with in accordance with the Will.

An individual cannot claim both Legal Rights and anything left to them in the Will – they must choose one. So, if spouse or civil partner and/or children opt to claim Legal Rights, they forego anything left to them in the Will.

A claim for Legal Rights can be made for twenty years following the testator’s death.

If there is a spouse or civil partner and/or children, and they choose to discharge their Legal Rights, then the whole estate will pass in accordance with the terms of the Will.

Executors should always ensure Legal Rights are claimed or formally discharged before they complete administration of the estate. A calculation of their Legal Rights should be provided to claimants when making their decision.

Where Legal Rights are being discharged, this should be done in writing and within two years of the date of death.

In Scotland, the age of legal capacity is 16.

There may be certain circumstances where a claimant has entered into a transaction between the ages of 16 – 18 but it is set aside because the transaction is found to be prejudicial. If so, the child cannot make a valid binding election until the age of 18. An election is a decision on whether to accept or formally discharge Legal Rights. In this circumstance, the Executors need to retain funds to cover a possible election when the child reaches the age of 18.

It is also an option, where there are children under 16 and the surviving spouse or civil partner is the sole beneficiary, for the Executors to pay the entire estate to the spouse or civil partner. This is on the understanding that the children could make a potential claim for Legal Rights when they reach 16 years of age.

If you are making a Will in Scotland and decide to include a gift to charity, the gift should not be affected by Legal Rights unless the estate is too small to meet the legal rights claim and the gifts to charity.