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Lindsay MacEwen
Lindsay MacEwen

Lindsay MacEwen is a senior associate in the private client team at Harper Macleod

What are my legal rights if a family member dies?

The meaning and value of family ties have very much been in the public consciousness in recent weeks, and rightly so.

However, sadly, it is a matter of fact that when people die, there will be discussions about being included in a parent’s Will, or disappointment with what has been left. Conversely, we receive regular enquiries from parents who want to know if they can disinherit a child/children. The answer in both cases centres on legal rights claims. But what does a vague term like ‘legal rights’ mean?

In Scotland, legal rights is a long-standing concept which prevents someone from fully disinheriting their children and/or surviving spouse/civil partner. It is distinct from the law in England & Wales and the existence of these rights can come as quite a shock for families and lead to some unwelcome consequences.

What are they?

Legal rights are an entitlement to a share of the net moveable assets of the parent or spouse/civil partner that has died. The share is usually settled in cash.

Broadly speaking, moveable assets are all assets (owned worldwide) other than land and buildings that were owned by the deceased. This includes cash, investments, and the value of personal items such as jewellery, vehicles, works of art or collectible items. Importantly, it also includes shares in a company or an interest in, for example, a farming partnership. The deceased’s debts and tax obligations are deducted when calculating the value of the moveable assets, and mortgages are not taken into account.

Who is entitled to claim?

A surviving spouse or civil partner can claim a one third share of the net moveable estate if there are surviving children or a half share of the net moveable estate if there are no surviving children.

Children of the deceased share a one third share of the net moveable estate if there is a surviving spouse. This is increased to a half share if there is no surviving spouse/civil partner. For example, if a deceased was survived by a spouse and three children, each child would be entitled to claim a one ninth share each.

If the deceased had a predeceasing child and that child had children of their own, those grandchildren are entitled to claim their parent’s share of the estate.

How does a potential claimant find out about their legal rights?

The executors administering the estate of the person that has died have a legal duty to calculate the legal right claims for each person entitled and communicate this to them. This extends to an estranged spouse/civil partner/child and means that executors need to do all they reasonably can to locate such individuals if the immediate family has no or limited contact with them. DNA tests are not unheard of.

A potential claimant is of course free to make their own enquiries and can notify the executors of their intention to claim their legal rights before the executors are in a position to calculate the value.

How long does the right last?

The right to claim is automatic and it lasts for 20 years after the death if not claimed/disclaimed before then.

Do I have to claim legal rights?

No, a person entitled to claim their legal rights must decide whether they wish to accept the terms of the Will or claim their legal rights.

If the Will makes provision for a potential claimant, they cannot claim both. They must choose to either accept the legacy under the Will or forfeit the legacy in order to claim their legal rights. This might happen if the value of the legal rights claim is greater than the legacy left in the Will.

For many families, legal rights are not a concern. However, for some families a legal rights claim can result in unwelcome outcomes, both emotionally and financially. By taking specialist advice now, such outcomes can be planned for and where possible, avoided.

For any questions that you have about legal rights and how you might plan for these, get in touch with the private client team at Harper Macleod LLP.

Harper Macleod
Harper Macleod

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