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Family rights on intestacy spotlighted in new consultation

18 February 2019

Division of an intestate estate as between the surviving spouse or civil partner and children of the deceased is the focus of a new consultation from the Scottish Government on possible reforms to the law of succession.

It also considers what rights cohabitants should have regarding succession, and whether stepchildren should have the same inheritance rights as biological or adopted children.

The particular problem the paper attempts to address is the situation where the surviving spouse remarries and the rights of the new spouse and any children of theirs come into play – if one party to the new marriage dies intestate, under the present law all their property may pass to their then spouse and then perhaps that spouse's children, effectively cutting out one set of children from succeeding to the property of their parents.

Two possible models are put forward as better alternatives. 

One, from Washington state, splits the estate into community property, that is, the property acquired in the course of the marriage, and separate property acquired by one spouse prior to marriage or by gift or inheritance during the marriage. Where there are dependants, the spouse takes the deceased's share of the net community property and half of the net separate property. Their share increases to three quarters of the net separate property if there are no dependants but there is a surviving parent, or issue of a parent, of the deceased; and they take the whole estate if there are no survivors in this class.

The system is very similar to that operating for divorcing couples under the Family Law (Scotland) Act 1985, where matrimonial property is treated separately from property acquired by one spouse by gift or inheritance, apart from the provision relating to the rights of surviving parents or their issue to inherit.

The other is from British Columbia, where if all children are the children of both spouses, the spouse will receive the household furnishings and a preferential amount of $300,000 of the estate's value or more. The spouse has a right to purchase the family home within a set time limit. If the children of the deceased are from a prior or different relationship, the surviving spouse's preferential amount is $150,000 with the remainder being distributed to the children. This is closer to the current Scots system of prior rights, and would require a view to be taken about the appropriate size of the preferential share.

A separate question is whether stepchildren should have a right equivalent to that of biological or adopted children to inherit in intestacy.

For cohabiting couples the paper proposes a test to determine the existence of a relationship, followed by questions as to whether the surviving partner should have automatic rights of succession or still have to apply to the court for an award from the estate, and the extent of any rights.

Miscellaneous other issues include whether a convicted murderer should be able to take up appointment as their victim's executor (they are already barred from inheriting), whether there should be a time limit ion claims for temporary aliment from an estate, and the protection of personal details of executors in any grant of confirmation.

Ministers have decided, following a consultation in 2015 which did not show any consensus on possible reforms, that the current scheme of legal rights where there is a will should not be changed, as while it can be criticised, it does have the benefit of striking a balance between testamentary freedom and limited protections for spouses/civil partners and children.

Click here to access the consultation. The deadline for responses is 10 May 2019.

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