IHTM12211 - Succession: Scottish Prior and Legal rights: Prior rights: Prior rights on Intestacy

The surviving spouse or civil partner's (IHTM11032) entitlement to prior rights on intestacy is governed by sections 8 and 9 Succession (Scotland) Act 1964, as amended by the Law Reform (Miscellaneous Provisions) (Scotland) Act 1968 and the Succession (Scotland) Act 1973 and by the Civil Partnerships Act 2004.

Prior rights take precedence over all other rights of succession in a fully or partially intestate (IHTM12101) estate. The spouse or civil partner is due both prior and legal rights (IHTM12221) from the intestate estate. The individual prior rights are closely defined, but the amounts of these rights are reviewed and revised from time to time. The value levels in force are shown at IHTM12212. You should allow spouse or civil partner exemption (IHTM11031) on the assets taken by the spouse or civil partner as prior rights.

Even where there are surviving children, (IHTM12252) the surviving spouse or civil partner is entitled by law to receive out of the intestate (or partially intestate) estate the following prior rights (the values are those effective from 1 February 2012).

  1. House - any dwellinghouse owned by the deceased spouse or civil partner in which the surviving spouse or civil partner was ordinarily resident, if that dwellinghouse does not exceed £473,000 in value. If the house is worth more than £473,000, the sum of £473,000 instead (satisfied entirely from the heritable estate).
  2. Furniture - furniture up to a value of £29,000, and
  3. Cash Provision - the sum of £50,000 if there are surviving children or the sum of £89,000 if there are no surviving children. This is satisfied proportionately from the moveable and heritable estate remaining after prior rights a. and b. have been met. Interest is payable on the cash provision from the date of death to date of paymentat a rate of 7%.

The settlement of prior rights reduces the value of the fund (the net moveable estate) upon which the legal rights calculation is based. Otherwise prior rights do not affect legal rights. If the intestate estate is not enough to meet the prior rights the surviving spouse or civil partner may be entitled to the whole intestate estate. In partial intestacy cases any legacies bequeathed to and accepted by the surviving spouse or civil partner have to be deducted from the cash provision.

There are examples of prior rights calculations at IHTM12213.