On Friday, Scotland’s new Trust and Succession Act came into force after a bill was debated in parliament last year. The bill was passed and finalised in January – and amends the traditional hierarchy of succession, giving weight to a couple’s separated status.
The new Act will now change the law on intestate succession in Scotland, affecting the estates of those who die without a Will and those left behind.
Previously, if a person died without a Will in place, the decision of who benefits from their estate was governed by law from the 60’s. If there was a surviving spouse or civil partner, they would automatically inherit the dwelling house (up to a certain value) in which they and the person who died lived. They also received the contents of the house and a cash sum of up to £89,000 depending on whether the person who died had surviving children. These entitlements were collectively called “Prior Rights”.
Following this if the estate still has assets left, the rest is distributed according to a set hierarchy depending on who survived. Any surviving children and grandchildren are the first to inherit, but if there are none, then the balance of the estate goes to the deceased’s parents or siblings. It’s only if there are no kids and the person who died also had no surviving parents, brothers or sisters that the spouse or civil partner gets anything beyond Prior Rights.
The Act will also clarify the effect of divorce, dissolution or annulment on “survivorship clauses”. These commonly appear in the title of jointly owned property by spouses and as proposed, divorce will result in such clauses to fail, meaning that property is not automatically inherited by the an ex-partner.
The order of priority has shifted so that spouses are next to inherit after children and grandchildren. Meaning when someone dies without a Will and had no children, the estate will be inherited by a surviving spouse or civil partner.
Many cases have resulted in a large portion of the estate passing to parents or siblings rather than a surviving spouse. This position has been greatly criticised as being out of line with what most people without children would want in the event of their death.
The new provisions ‘create an issue for separated couples when a person dies, leaving behind a surviving spouse or civil partner but no children’ says the Law Society of Scotland.
They continue by saying:
“Section 77 of the Act amends the hierarchy of succession so that, where the couple had separated prior to death but not formally divorced or dissolved the relationship, the survivor will take everything. This is possibly the last thing that a separated person might wish to happen and makes it even more important for separated individuals to execute a will as a matter of urgency.”
