We regularly recommend updating your will when your personal or financial circumstances change. Getting married is a clear example of a change in circumstances. However, there are significant benefits to having a will in place before getting married and then ensuring that your will is kept up-to-date as life moves on.
Succession before marriage
Before tying the knot, the law in Scotland does not provide automatic succession rights for unmarried couples. If one of the couple dies, the beneficiaries of the estate will be decided based on whether or not a will is in place.
If the person left a will, the will will determine who benefits from the estate.
If the person died without a will, the law's starting point is usually that the deceased's biological family members will inherit the estate. The surviving partner is not a biological family member and will not automatically inherit. The surviving partner can apply to the court to receive financial provision from the estate. However, there are strict deadlines for making this application and receiving an inheritance is not guaranteed.
The important point here for unmarried couples is to ensure that they have up-to-date wills in place – even before deciding to get married.
Succession after marriage
Once married, the law in Scotland provides automatic succession rights for spouses and civil partners. The extent of these rights will depend on whether the deceased left a will.
If the deceased left a will which bequeaths their entire estate to their spouse or civil partner, the will will take precedence, albeit surviving children will also have succession rights.
If a married person dies without a will, the law entitles the surviving spouse or civil partner to certain prior rights. These include a right to the deceased's interest in the house in which the survivor was ordinarily resident in at the date of death, the furniture and plenishings of the house and a right to a cash sum. Certain monetary limits apply to these rights. The survivor is also entitled to either a half or a third of the net moveable estate depending on whether or not there are any surviving children. The remainder of the estate will then pass to the beneficiaries outlined in the legislation. If the deceased is survived by their children, parents or siblings, the surviving spouse will not inherit the remainder of the estate.
The message is clear – putting a will in place allows you to pass your estate to your surviving spouse or civil partner and makes the administration of the estate more straightforward.
Succession and separation
It is also important to update your will if you are going through a separation.
Scottish law provides that if a person leaves a benefit to their spouse or civil partner in their will and the parties then divorce or the civil partnership is dissolved and one of the parties dies, the surviving ex-spouse or civil partner is treated as if they have predeceased and will, generally, not benefit under the will.
However, there is often a lengthy period of time between separating and finalising a divorce or the dissolution of a civil partnership. Therefore, separating parties should update their wills during this time to ensure their estate passes to their preferred beneficiaries. Until the divorce or dissolution of the civil partnership is finalised, the parties will still have automatic succession rights in each other's estates and specialised advice should be taken on this.
Conclusion
Keeping your will up-to-date as your circumstances change is important for ensuring that your preferred beneficiaries inherit your estate. For more information, please do not hesitate to contact any of the members of our Personal team.
Please note that the content of this blog only applies to Scotland. There are marked differences under the law of England and Wales, particularly in relation to statutory entitlements and wills put in place prior to marriage. If you have any queries in relation to such matters, please get in touch to contact a member of our English Personal team.
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