It is often the case that couples, during marriage, make a will leaving their assets to their spouse upon death. It is also common that upon seeking divorce those couples fail to consider how their assets upon death will be divided. The law of succession has now changed:
The law of succession deals with a person’s assets upon death. The main Act of Parliament in this area of law was the Succession (Scotland) Act 1964, however, recent amendments to this Act impact on family law matters, mainly divorce. The amendments are contained within the Succession (Scotland) Act 2016 and I will look at how these may affect decisions relating to divorce.
Prior to the Succession (Scotland) Act 2016 divorce or dissolution of civil partnership would have had no impact on a person’s Will in Scotland. This means that upon divorce the surviving spouse could inherit what had been left to them in their former spouse’s estate. It would frequently be the case that this was not the deceased’s intention.
However, the Succession (Scotland) Act 2016 helpfully addresses this situation. If the deceased’s will leaves assets to their former spouse, and was not updated upon divorce, the surviving and former spouse is treated as though they pre deceased the person who made the will. Therefore, any part of the will leaving assets to the surviving spouse does not apply. This is the case if the following conditions are met:
- The deceased is domiciled in Scotland after 1 November 2016 and
- The divorce or dissolution was obtained from a court of civil jurisdiction in the United Kingdom, the Channel Islands or the Isle of Man or is otherwise recognised in Scotland.
It is important to note that although this amendment is of assistance to separating couples these provisions do not apply for the period of time between separation and divorce. These amendments only apply upon divorce. It therefore remains essential that upon separation, couples who are married or in a civil partnership, re consider their will.
The Drummond Miller Family Law Team is extremely experienced in dealing with all aspects of Family Law including divorce and separation, including financial matters and issues regarding contact and residence of children. We also have a very experienced Private Client Team who can assist with Wills, Powers of Attorney and Guardianships. If you would like further information and advice please get in touch with our experienced Solicitors in Edinburgh, Glasgow, Dalkeith, Musselburgh and Bathgate.
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