Legal Rights are a distinctive feature of Scots Law, protecting certain family members from disinheritance. They entitle a spouse or civil partner and any children (or the descendants of a predeceasing child) to claim a portion of a deceased person’s estate, even if the deceased left a will leaving nothing to them. Legal Rights apply automatically, without a claim to the court having to be made.

Cohabitees do not have an entitlement to Legal Rights. Under certain circumstances, a surviving cohabitee can raise an action through the courts, but this is not an automatic right.

How much can be claimed?

The value of a Legal Rights claim is calculated by reference to the value of the net ‘moveable property’ in the deceased’s estate. Broadly, moveable property comprises any assets that are not land or buildings. Any debts and certain expenses (such as inheritance tax and funeral costs) are deducted to leave the net value.

The value of the Legal Rights claim depends on whether the deceased left:

• a surviving spouse or civil partner and children;
• a surviving spouse or civil partner alone; or
• children alone.

A widow, widower or surviving civil partner can claim one-third of the deceased’s moveable estate if there are also surviving children, or one-half if there are not.  Surviving children are entitled to one-third of the moveable estate, equally between them, if there is a surviving spouse or civil partner. This increases to one-half if there is no surviving spouse or civil partner.

A child’s entitlement is not increased by his or her siblings choosing not to claim their respective shares. For example, if two surviving children are collectively entitled to a third of the net moveable estate, each child would be entitled to one-sixth. If only one child wishes to claim Legal Rights, the claim remains one sixth – it is not increased to a third as a result of the other child deciding not to make a claim.

If a family member is also a beneficiary under the will, he or she must choose to claim either his or her entitlement under the will, or Legal Rights. It is not possible to claim both Legal Rights and an entitlement under the will.

What happens if someone does not wish to claim their Legal Rights?

There is no obligation to claim Legal Rights. Anyone who is entitled to Legal Rights may renounce them at any time – either before or after the death of the person in whose estate they have the entitlement.

Asking relatives to renounce their Legal Rights during your lifetime can be a useful estate planning tool. However, a person can never be forced to give up their entitlement, nor can they be paid to do so.

If you are concerned about Legal Rights being claimed on your estate, or if you would like more information on making a claim, it is important that you seek the advice of a qualified advisor.

Kirsten Anderson TEP is a Partner in the private client team at Stronachs, Aberdeen, Scotland