Family Law: Where there's a Will... There's a Way

Under Scots law mere separation is not enough to defeat the rights of a spouse to inherit all or part of the estate of the other were the other to die whilst the couple are still married. 

Separation can be a very stressful and traumatic time and for many people going through a separation they cannot think that things could get even worse for them. It is however a time when thought should be given to what could happen if indeed things did get worse.

Despite being separated, in law a couple who are living separately remain married for the purposes of inheritance. Therefore, when a couple separate if they do not wish their spouse to inherit their estate on their death it is important that they take steps to limit that possibility. When acting on your behalf our solicitors will recommend to you that you consider changing any nomination you may have made on a pension, life assurance, or death in service benefit. If you die whilst separated, but still married, unless you have a Separation Agreement where both parties have agreed not to claim in each other's estate in such circumstances, your spouse will be your widow and will generally be entitled to receive these benefits. You should also consider making a Will or updating a Will that you have previously made. That way you can bequeath your estate to such persons as you would wish to benefit. If you die intestate (i.e. without having made a Will) your spouse will be entitled to inherit some or all of your estate under the laws of intestacy. 

A Will is however by no means the complete answer. Even if you make a Will leaving your estate to persons other than your spouse your spouse will still be entitled to what is known as Legal Rights in your estate.  If you die without leaving children these Legal Rights would amount to one half of your net moveable estate and if you die leaving a spouse and children then your spouse's entitlement to Legal Rights would amount to one third of your net estate. Moveable estate will consist of items such as savings, personal property, and shares and investments but not heritable property (land and buildings). There are also particular rules relating to cohabitants who have separated and in relation to land and property where the title deeds make provision for what should happen to the property on the death of one or other of the owners. 

It is therefore important that consideration is given to death during a period of separation to limit the possibility of the separated spouse inheriting by reason of these rules of Scots law.

Drummond Miller LLP has offices in Bathgate, Dalkeith, Edinburgh, Glasgow and Musselburgh. Our Family Law Team is able to provide advice on all aspects of family law including divorce, separation, cohabitants' claims, residence, contact, and adoption. Where specialist advice on inheritance tax planning, Wills, Trusts, and Executries is required our Family Law Team is able to refer clients to other specialists within the firm.