Family disagreements happen. When they do, sometimes they are serious and irreparable. That can have significant implications when this is between a parent and their children. Sometimes, this leads to the parent wishing to exclude the children from receiving anything from their estate. As a result, we are sometimes asked whether a parent can disinherit their children in Scotland.
The Law of Succession in Scotland sets our provisions to protect the right of the spouse or civil partner. It also seeks to protect the right of children to share in their parent’s estate.
Children of a deceased parent are entitled to Legal Rights. It is an automatic entitlement, and it applies to biological and legally adopted children. The spouse or civil partner of the deceased is also entitled to Legal Rights. However, determining the extent of Legal Rights can be complex.
In addition, children are entitled to Legal Rights whether there is a Will or not.
If the deceased does not leave a Will, their spouse or civil partner is entitled to Prior Rights. That means the surviving spouse or civil partner is entitled to the house (up to the value of £473,000) and the furniture in the house (up to the value of £29,000) and a cash sum (if there are children £50,000 or if there are no children £86,000). If the whole estate is exhausted by the Prior Rights, then there will be nothing left for Legal Rights.
After the Prior Rights have been satisfied, the surviving spouse or civil partner is entitled to Legal Rights to the extent of one third of the remaining moveable estate and the children to one third of the remaining moveable estate equally amongst them. If there is estate remaining, the children are entitled to the remainder of the estate.
Prior Rights enjoyed by the surviving spouse or civil partner do not apply where there is a Will. Where there is a Will, Legal Rights still apply on the following basis:
Please note that Legal Rights relate to moveable estate. Heritable estate is excluded.
When either the surviving spouse or civil partner or a child exercises their Legal Rights, they will lose any provision made for them in the Will. They cannot exercise their Legal Rights and receive any provision made for them in the Will.
The Law of Succession is complex and aims to ensure that a parent cannot disinherit a child.
If you have any questions about making or changing a Will or if you would like to discuss dealing with someone’s estate, please contact us.