Ministers proposing to leave legal rights alone

According to Scots law, a surviving spouse or civil partner and children of a deceased person are protected from disinheritance by virtue of their entitlement to legal rights. These rights exist in both testate and intestate cases, regardless of whether the deceased left a valid will.

Under the current law, the amount of legal rights is calculated with reference to the net moveable estate of the deceased. Moveable estate generally comprises estate that is not classed as heritable property, such as cash, shares, cars, furniture and personal effects. This affords individuals the opportunity to take steps during their lifetime to mitigate a legal rights claim on death, by reducing the size of their moveable estate.

The Scottish Law Commission ("SLC") had, however, recommended changes to the law on legal rights in its 2015 consultation on the law of succession to extend the protection from disinheritance afforded to a surviving spouse or civil partner and children. This controversially included a proposal to amend the calculation to take account of the deceased's entire estate, including land and heritable property.

After considerable review, the Scottish Government responded to the SLC recommendation in October 2018 and confirmed that it will not, in fact, be seeking to remove the distinction between the types of property for the purposes of legal rights. There were many reasons behind the decision, including concerns about the negative impact this change would have on land and agricultural businesses and the ability of individuals to manage their affairs as they wish.