IHTM35211 - Legitim: introduction

Where a person dies

• leaving a will, and
• leaves a surviving spouse or civil partner ( IHTM11032), and
• a person under 18 ( IHTM12250) entitled to claim legitim, ( IHTM12221), and
• the testamentary provisions in favour of the surviving spouse or civil partner, if implemented, would leave insufficient estate to meet legitim claims,

the position is governed by IHTA84/S147.

The basic rule ( IHTM35212) is that tax is charged as if legitim has been claimed, so that the spouse or civil partner exemption ( IHTM11031) is restricted, subject to later revision to the extent to which the legitim claim is renounced. However, the executors can elect that full spouse or civil partner exemption should be given on the testator's death, subject to restriction later if legitim is claimed.

IHTA84/S47 does not apply in

• intestacies, ( IHTM12001) or
• where the surviving spouse's or civil partner's testamentary benefits are less than the jus reliciti(ae) or rights under s.131 Civil Partnership Act 2004 ( IHTM12221), or
• where the testamentary provision for the person under 18 exceeds the value of the legitim entitlement.

The Age of Legal Capacity (Scotland) Act 1991 (IHTM12250) has no effect on IHTA84/S147. The relevant age for the purposes of IHTA84/S147 remains 18.