There are often interesting debates in the UK about inherited titles, assets and wealth, commonly in the context of constitutional law and democratic rights. The concept of automatic inheritance, or 'forced heirship', reaches through all areas of our society, however, and it's very common for assumptions to be made about this. Most notably, there is a commonly held belief that on the death of one spouse/ civil partner, the other will automatically inherit everything. And if there are children, then on the second death the assumption is that the children will inherit everything. Is this the case in practice, though, and if so is it generally a good thing?
Succession laws in Scotland are outdated and have failed to keep pace with our changing society. One of the key reasons for this is that it's difficult - difficult to legislate in an area where demographics have shifted and continue to change; and difficult to consolidate current attitudes and norms let alone provide a legislative foundation for the future. There is a myriad of different family and personal circumstances, and in trying to provide frameworks and solutions, the law is in danger of becoming 'one size fits none'.
Can I put whatever I want in my will?
The good news is that you don't need to rely on the succession laws in Scotland – they are there to provide a default position in the event that you don't have a will in place. If you want the certainty and control of who is to inherit what from you, you simply write this into your will, and, with a few limited exceptions, you are free to make whatever provisions you wish.
However, there are some forced heirship rules in Scots law sitting alongside our underlying principle of testamentary freedom. Known as 'legal rights' this makes provision, regardless of the terms of your will, for spouses/ civil partners and children (or grandchildren if your child has died before you leaving children of their own). Note that this is quite narrow, there are no legal rights for other relationships such as siblings, parents, cohabitants, step-children and so on. The only people who would have a legal rights claim where you already have a valid will in place are your spouse/ civil partner and your biological (or adopted) children (or grandchildren).
If you have already included these people in your will, they would be entitled to whatever they are due in the will or their legal rights, not both. In most cases, the terms of the will are adhered to. However, there are some circumstances in which legal rights (if claimed) could cause difficulties. Take, for example, a couple who are married and one of whom has children from a previous relationship. They might have decided that they want all their estate to be inherited by their children, and this is set out in their will – but their current spouse would have a legal rights claim to part of their estate and the decision to take the claim or not rests with the spouse. Once the spouse has inherited, those assets and wealth then form part of their estate and the children of the first spouse would have no rights at all in that person's estate. They would only inherit from the spouse if the spouse had this written into their will, which they are free to change at any time.
Issues can also arise if a couple are separated but not yet divorced when one of them dies. Even if the deceased had changed their will to reflect their new circumstances, unless there is a signed renunciation of all rights of succession (which would usually be included in a formal separation agreement), the spouse/ civil partner will still have legal rights.
What if I don't want my child to inherit anything from me?
It is very difficult to disinherit any of your children, and whilst the children might think this is a good thing, it can be problematic. Not all familial relationships are rosy and peaceful and it's not all that unusual for children to have moved away and lost touch, or for arguments and disputes to have led to estrangement. Sometimes the concern is not so much that the child should inherit, but that the child's partner might then get their hands on family wealth. In these cases, the legal rights rules can seem frustratingly inflexible and unjust.
Legal rights have consequences for the practical side of estate administration too. For example, spouses might have joint bank accounts which will continue in the surviving spouse's sole name when the bank is notified of a death. However, the funds, or a share of funds, in the account may form part of the calculation of legal rights which the spouse may then be required to return to the deceased's estate.
What's included in a legal rights claim?
Currently, legal rights are calculated with reference to the net moveable assets only. This does not include the deceased's house or any other land and buildings, which are classed as heritable assets, so legal rights are restricted. Depending on circumstances, this might help the deceased mitigate the sum due to a soon to be ex spouse or estranged child. Conversely, if the deceased's house has been sold and there is cash in the estate at the time of death then the legal rights claim might be much higher (e.g. if the deceased had been resident in a care home).
There have been rumblings of law reform in this area for a while, and a key question is whether legal rights might be extended to include heritable property as well as moveable. The consequences of this could be far reaching, as this would cover the deceased's home and other land and buildings they owned. It's easy to imagine the difficulties caused by an estranged child taking their legal rights claim and properties or land (including potentially farmland) having to be refinanced, split up or sold off to cover this, all of which might be in direct conflict with the deceased's wishes.
Everyone's circumstances are unique and good advice is to make sure you have a valid will in place, and talk to a professional about legal rights in the context of planning for the succession to your assets.
