5th August 2020

The intricacies of Legal Rights: 5 points to be mindful of

  1. What are they?

Legal Rights are a peculiarity of Scots Law designed to protect against the disinheritance of certain relatives regardless of what you have written in your Will. Whilst many of our clients have heard of legal rights it is fair to say that most are surprised to hear that what they have written in their Will is not the ‘final word’ on the matter.

Legal rights exist automatically by virtue of the law but where the potential legal rights claimant has been specifically named as a beneficiary in your Will, they must decide to either accept the bequest in your Will or make a legal rights claim. They cannot benefit from both.

  1. Who can claim them?

Your spouse, civil partner, and children may claim legal rights. A separated spouse or civil partner may still claim legal rights in your estate where divorce or dissolution has not been finalised and legal rights are not otherwise dealt with in a separation agreement.

As the law currently stands, legal rights cannot be claimed by cohabitants. Provision exists in the law for a surviving cohabitant, in specific circumstances, to make a claim in their partner’s estate. This is not an automatic entitlement, however, and requires an application to the court.

  1. How much can be claimed?

Legal rights only exist against part of your moveable estate (i.e. money in the bank, shares, investments and the like). Your house is not taken into account, but any outstanding debts you may have at your death, and other expenses (such as inheritance tax, funeral costs etc), are relevant from a legal rights point of view.

The amount that may be claimed is determined by who survived you:

  • if you are survived by a spouse or civil partner, they are entitled to claim one-half of your net moveable estate where there are no surviving children; the claim is reduced to one third where you are also survived by children; and
  • your children are entitled to one-half of your net moveable estate, equally among them, where you have no surviving spouse; the claim is reduced to one third where your spouse survives you.

For example, if your net moveable estate is £90,000, and you are survived by your spouse and 3 children, your spouse is entitled to legal rights of one third (£30,000) and your children are collectively entitled to share one third equally among them (£10,000 each).

  1. How long does a potential claimant have to claim?

A legal rights claim exists for 20 years from the date of death.

  1. Who will deal with Legal Rights in my estate?

Your Executor has a duty* to advise those parties entitled to make a legal rights claim against your estate of that claim. They must ensure that, as part of the administration process, legal rights are either claimed or formally discharged before your estate is wound-up. This will usually be undertaken by the solicitor acting on behalf of your Executor.

Looking at legal rights from a slightly different perspective you may find yourself in the position, during your lifetime, of being contacted by a solicitor regarding your legal rights in the estate of a deceased relative. Any decision you make regarding your legal rights will have legal consequences for you and it is important, in these circumstances, that you seek independent legal advice before proceeding.

If you are concerned about legal rights, or if you have been contacted about a legal rights claim you have in an estate but you are unsure how to proceed, please contact one of our experienced Executry solicitors who will be happy to review matters with you.

*For more information on the role and responsibilities of an Executor, please refer to the article “The Role and Responsibilities of an Executor” by Millie Crocker.

Megan Hainey

Private Client




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