IHTM12151 - Distributions under intestacy (Scotland): surviving spouse or civil partner
The surviving spouse or civil partner’s ( IHTM11032) entitlement under an intestacy depends on what other surviving relatives the deceased had at the time of death. The following table sets out the distribution rules if the deceased dies leaving a surviving spouse or civil partner
| If the deceased dies leaving a surviving spouse or civil partner and the deceased was | Surviving spouse or civil partner takes |
| Without children, parent, brother, sister or issue of brother or sister | The whole estate |
| With children | Prior and legal rights ( IHTM12201) |
| Without children, but with parents, brother, sister or issue of brother or sister | Prior and legal rights ( IHTM12201) |
You will need to bear the following in mind when considering what a surviving spouse or civil partner is entitled to under intestacy.
- the intestate’s spouse or civil partner has to survive the intestate, no matter how short the period, in order to take any benefit from their estate.
- in the case of a husband and wife or civil partners who both die in circumstances which render it uncertain who died first the rule - known as commorientes ( IHTM12191) - that the younger is deemed to have survived the elder does not apply. Instead it is presumed that each spouse or civil partner predeceased the other with the result that the rights of the surviving spouse or civil partner are ignored when distributing under the intestacy rules.
- where a decree of judicial separation has been made (not merely a separation agreement) then for the purpose of administering an estate a husband does not inherit any of a wife's intestate estate which she acquires after separation. But there is no equivalent rule barring a separated wife inheriting.
- divorced spouses or former civil partners take no interest in the estate of their former spouse or civil partners.
