IHTM12221 - Succession: Scottish Prior and Legal rights: Legal rights: Introduction

Legal rights have been a feature of Scots law for a very long time. Prospective beneficiaries only become entitled to claim legal rights if they survive the spouse or civil partner (IHTM11032) or parent (or grandparent) who has died. Provided they do survive the deceased person, their legal rights vest in them by force of law. However, a surviving spouse or civil partner and issue cannot demand the transfer of any specific assets or part of the estate to satisfy their legal rights claim.

The surviving spouse or civil partner or children cannot be denied their legal rights by any provision in the deceased's Will, or in any other document taking effect on the deceased's death. This is because testamentary or mortis causa (taking effect by reason of the death) provisions can only take effect after legal rights have been met.

The legal rights still in force, which apply whether the estate is testate or intestate, (IHTM12001) are those which can be claimed only from the moveable estate (IHTM12225) of a deceased person.

These are

  • jus relicti (the right of the surviving husband), or
  • jus relictae (right of the surviving wife) and
  • legitim or bairn’s part (the right of the children)
  • Rights under s131 of the Civil Partnership Act 2004. (s131 gives to a Civil Partner rights equivalent to jus relicti and jus relictae.)

The balance of the estate, that is the part which the deceased was free to dispose of by will, or which passes under the rules of intestacy, (IHTM12141) is called the dead’s part. The division of the estate is

Survivors Jus relicti(ae) & s131 rights Legitim Dead's part
Spouse or civil partner and children IHTM12252  One-third One-third One-third
Spouse or civil partner but no children One-half None One-half
Children but no spouse or civil partner None One-half One-half
Neither spouse, civil partner or children None None Whole moveable estate

Where prior rights (IHTM12211) are payable, these prior rights will reduce, and in certain circumstances may entirely exhaust the estate (the net moveable estate) which would otherwise be available for the calculation and settlement of legal rights. A trial calculation will quickly show the impact of the prior rights entitlement.

A divorced spouse or former civil partner has no entitlement to legal rights.