Legal rights with Harper Macleod


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Lindsay McEwen

Lindsay MacEwen is a Senior Partner in the Private Clients team at Harper Macleod

What are my legal rights if a member of my family dies?

The meaning and value of family ties has been very much in the public consciousness in recent weeks, and rightly so.

However, sadly, it is a fact that when people die there will be talk of inclusion in a relative’s will or disappointment with what is left. Conversely, we regularly receive requests from parents who want to know if they can disinherit one or more children. The response in both cases centers on legal rights claims. But what does a vague term like “legal rights” mean?

In Scotland, legal rights are a long-standing concept which prevent a person from entirely disinheriting their children and/or surviving spouse/civil partner. It is separate from the law in England and Wales and the existence of these rights can come as a shock to families and lead to unfortunate consequences.

What are they?

Legal rights are a right to a share of the net movable property of the deceased parent or spouse/civil partner. The share is usually settled in cash.

Generally speaking, movable property is all property (held worldwide) other than land and buildings that belonged to the deceased. This includes cash, investments, and the value of personal items such as jewelry, vehicles, artwork, or collectibles. Importantly, it also includes shares in a company or a stake in, for example, an agricultural partnership. Debts and tax obligations of the deceased are deducted when calculating the value of movable property, and mortgages are not taken into account.

Who is entitled to claim?

A surviving spouse or civil partner can claim one third of the net movable estate if there are surviving children or a half share of the net movable estate if there are no surviving children.

The children of the deceased share one third of the net movable assets if there is a surviving spouse. This is increased to half a share if there is no surviving spouse/partner. For example, if a deceased person was survived by a spouse and three children, each child would be entitled to claim a ninth share each.

If the deceased had a child who predeceased him and this child had children of his own, these grandchildren have the right to claim their parents’ share of the estate.

How does a potential claimant find out about their legal rights?

The executors who administer the estate of the deceased person have a legal obligation to calculate the legal rights for each beneficiary and communicate it to them. This extends to a spouse/civil partner/separated child and means that executors should do everything they reasonably can to locate these people if the immediate family has little or no contact with them. DNA tests are not uncommon.

A potential claimant is of course free to do their own research and can notify the executors of their intention to enforce their legal rights before the executors are able to calculate the value.

How long does the law last?

The right to claim is automatic and lasts for 20 years after death if not claimed/waived before.

Do I have to claim legal rights?

No, a person entitled to claim their legal rights must decide whether they want to accept the terms of the will or claim their legal rights.

If the will provides for a potential claimant, he cannot claim both. They must choose to accept the inheritance under the will or renounce the inheritance in order to claim their legal rights. This can happen if the value of the legal rights claim is greater than the inheritance left in the will.

For many families, legal rights are not a concern. However, for some families, asserting legal rights can lead to undesirable outcomes, both emotionally and financially. By taking specialist advice now, such results can be planned for and, if possible, avoided.

If you have any questions about legal rights and how you might plan for them, contact the private client team at Harper Macleod LLP.

Harper MacLeod
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