When a spouse or partner in a civil partnership dies, their surviving spouse or civil partner has an automatic right to share in their estate. This right applies whether or not the deceased made a Will. However, where you and your partner are unmarried, you have no automatic right to inherit a partner’s estate.
Rules of succession where there is no Will
Where there is no Will, the surviving spouse in a marriage or a partner in a civil partnership is entitled to Prior Rights. Prior Rights entitle the surviving spouse or partner to:
- The family home (up to a value of £473,000);
- The furniture and contents of the family home (up to a value of £29,000);
- £89,000 in cash if the deceased had no children or £50,000 if the deceased had children.
In addition to Prior Rights, the surviving spouse or civil partner is also entitled to Legal Rights. Legal Rights have the following entitlement:
- One third of the moveable estate if the deceased spouse or civil partner had children or one half if they did not.
The executor will distribute the remainder of the estate in accordance with the law of succession. This might mean the surviving spouse would receive no more than their Prior Rights and Legal Rights!
Unmarried partners have no automatic right to inherit a partner’s estate.
What happens where there is a Will?
Where the deceased spouse or civil partner made a Will, Prior Rights do not apply. However, there is an automatic entitlement to Legal Rights.
In addition, where there is a Will, the remainder of the estate will follow the directions in the Will rather than the law of succession. This means the deceased can choose what should be done with their estate.
How can a surviving unmarried partner claim a share in the estate?
The Family Law (Scotland) Act 2006 includes provisions to allow a surviving unmarried partner to inherit a deceased partner’s estate (or at least part of it). Section 29 of that Act allows the surviving unmarried partner to apply to the court for a share in the estate. When the unmarried surviving partner applies to the court, it can award a capital sum and/or order the transfer of property. The court can also make any other order it thinks appropriate in the circumstances.
Of course, the court must take into account the size and nature of the estate. It also must consider what other benefits the surviving unmarried partner has or will receive because of the other partner’s death.
Importantly, any interim order made by the court cannot be more than the amount the survivor would have received if they had been married to or in a civil partnership with the deceased.
Finally, the surviving unmarried partner must make an application to the court within six months of the date of death. If they do not, they will lose their right to share in their partner’s estate.
What should the executor do?
The executor in the estate of the deceased unmarried partner will not be the surviving unmarried partner. The unmarried surviving partner does not qualify as executor. That means someone else will be appointed. That is likely to be a family member.
When appointed, the executor must bear in mind that the unmarried partner can apply for a share in the estate for up to six months from the date of death. A prudent executor should not distribute the estate within six months of the date of death. If the executor decides to distribute the estate within the six-month period and a subsequent claim by the unmarried surviving partner is successful, the executor may be personally liable to settle that claim.
Wills and Estate Planning Solicitors, Dunfermline, Fife
Stacey Parker helps clients with all aspects of Will preparation and estate planning in Dunfermline, Fife and right across Scotland. If you need any help or advice to draw up a Will or carry out estate planning, please contact Stacey on 01383 629720 or email Stacey at stacey@maloco.co.uk.
