It is common knowledge that in Scots law, you can’t disinherit your children and, like most things that are common knowledge, there’s some truth in that, although it is a lot more complicated than you might think.
So, what are your children entitled to in law?
It depends a lot on whether you leave a Will or not. Without a Will, the law applies a series of rules designed to protect not only your children, but also your spouse or your civil partner (or a partner that you live with but are not married to if they make an application to the court).
Your spouse will have what is known as ‘Prior Rights’. This means that he or she will be entitled to the family home (up to £473,000), any furniture in that home (up to £29,000), and a cash sum of money (if there are no children, then it is up to £89,000, if there are children then it is up to £50,000).
As you will see, there is a £39,000 difference in the amount of cash that a spouse can automatically inherit under their Prior Rights depending on whether there are children or not. That money is intended to be shared equally between all of your offspring – including any adopted and illegitimate children. And if one of your children dies before you do, their children (your grandchildren) will be entitled to their parent’s share of your estate.
If these Prior Rights exhaust the full value of the estate i.e. the property, furniture and cash come to less than the maximum the spouse can claim in law, then that is effectively the end of the matter. You may be happy with that, but if had hoped that your children might inherit a greater proportion of the value of your estate, you can only do that by making a Will. And don’t forget that your spouse is not obliged to leave the property he or she has inherited under their Prior rights to your children.
If the value of your estate is greater than the maximum that your spouse can claim under Prior Rights, then what are known as Legal Rights come in to play.
Legal rights set out how your remaining ‘moveable’ estate (cars, savings, jewellery etc, but not land or buildings), should be divided and they include provision for any children you may have. Once your spouse’s Prior Rights have been met, your children are entitled to a third of your remaining moveable estate split equally between them and your spouse is also entitled to a third.
Whatever remains after the Legal Rights of both your spouse and children have been met, whether it is moveable or heritable (i.e. land and buildings) property, is divided equally between your children.
If there is no spouse or civil partner, then the entire estate goes to any child or children divided equally between them.
If, however, you make a Will you have much greater flexibility in deciding how your estate is divided up. With a will in place, your spouse does not have any Prior Rights – these only come into effect if there is no Will. And you will be free to dispose of your heritable property – any land or buildings you own – as you wish. You can leave your heritable estate to whoever you like and neither your spouse nor your children have any claim on it.
But that does not give you an entirely free hand in disposing of your estate.
Both your spouse and your children will have Legal Rights. If you have no children, then your spouse is entitled to half of your moveable estate in law. If you have children, your spouse is entitled to a third of your moveable estate and your children to another third, split equally between them.If you have children but no spouse, then your children can claim half of your moveable estate.
The Legal Rights of your children can’t be ignored – they are the law. But your children can’t claim their Legal Rights together with any legacy you leave them in your Will at the same time. They have to choose one or the other.
If your Will is more generous that they might expect to get from exercising their Legal Rights, it would be self-defeating to make a claim based on their Legal Rights. If, on the other hand, your Will leaves them less than they might get by exercising their Legal Rights, they can opt to claim their inheritance on that basis.
So, children do have some inheritance rights in law. But their Legal Rights are not necessarily enough to ensure that they will benefit from your estate to the extent that you might wish. There is no obligation, for example, that assets inherited by your spouse through Prior Rights should be subsequently left to your children. If you want to secure the inheritance of your children, it is far better to take control and make a Will than it is to rely on the law.