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Where there’s a will there’s a way to get the inheritance right

Last month, the Trusts and Succession (Scotland) Act 2024 came into effect, making changes to the law applicable to trusts and succession and in doing so, bringing some far-reaching implications for couples who are separated.

The message is clear. You need to update your current will. If you don’t have one, arrange to get one now.

The new Act changes the law on how the estates of those who die without a will in Scotland are divided – known as intestate succession. This has a direct impact on the family of the deceased person.

With effect from the end of April 2024, a surviving spouse/civil partner of a deceased person will now have a right to inherit the whole of their estate where:

  • They remained married, or were in a registered civil partnership at the time of the death.
  • The deceased person did not leave a valid will; and
  • The deceased person was not survived by any children.

This is a substantial change to the previous position where a spouse or civil partner’s claim on the estate was restricted to “Prior Rights” and “Legal Rights”, with clear and specific limits on the value of money or assets that could be claimed, as well as limitations on the type of property against which claims could be made.

This would often lead to part of the deceased’s estate passing to other surviving blood relatives, such as siblings or parents.

While a spouse/civil partner inheriting their deceased partner’s full estate may well seem ideal for those couples who were still living together, it does create a potential pitfall for couples who have separated but whose relationship breakdown has not yet been formalised by divorce or dissolution of the civil partnership.

In this circumstance, where the couple technically remained married or in a civil partnership, but considered themselves to have split up at the time of the death, the surviving spouse or civil partner inheriting the entire estate is unlikely to be welcomed by, for example, the family of the deceased. It is up to separated individuals to be aware of this potential pitfall and put a will in place which reflects their changed status at the earliest possible point so that they don’t fall victim to it.

While it has always been important for anyone who has separated to consider updating a current will or putting one in place, this is now more important than ever because of this law change.

There remains a general lack of awareness around what would happen in the event of the death of a spouse between separation and divorce, and their will is often the last thing on people’s minds when they are in the midst of a difficult break-up.

A survey carried out by MacMillan Cancer Support suggests that more than one in five wills still include an ex-partner (or someone the person plans to remove), don’t yet include children or grandchildren or don’t include a new relationship,

This means that many people really are at risk of being caught out by this, with potentially huge financial consequences for the family that they leave behind.

This article was published in the Scotsman on Monday 13th April 2024.