IHTM12229 - Succession: Scottish Prior and Legal rights: Legal rights: Claim or discharge of legal rights

Where a person dies intestate, (IHTM12141) the legal rights (IHTM12221) of any surviving spouse or civil partner (IHTM11032) or children (IHTM12252) will accrue to them automatically under the rules of intestate succession and will fall to be paid over. But, those entitled may formally renounce their rights if they wish to. Any renunciation made within two years of the death may qualify as a valid variation (IHTM35071) of the disposition on death.

Where a person dies leaving a Will, any surviving spouse or civil partner or children may elect between any provision made for them in the Will and their legal rights entitlement. They are not allowed to take both. What they choose to do might depend on the relative values of the respective entitlements or on family circumstances. Where the benefit under the Will equals or exceeds the legal rights entitlement they do not need to make a formal election between the two. Accepting the testamentary provision will generally confirm the decision.

Where no testamentary provision is made for someone entitled to claim legal rights, that person, if of full legal capacity (IHTM12251) may assert (claim) or discharge (renounce) their legal rights entitlement.

A spouse or civil partner or children, prospectivey entitled to legal rights in a person’s estate, can discharge these rights during that person’s lifetime. For example, a spouse may have discharged their legal rights by ante nuptial marriage contract, or a child may have executed a discharge of their legal rights in a parent’s estate, on receiving a significant lifetime gift from the parent (IHTM12228).

Where a lifetime discharge has been executed, the effect (when it comes to the eventual calculation of legal rights entitlement) is that the grantor of the discharge is treated as having died. If a lifetime discharge was granted by the surviving spouse or civil partner, there can be no jus relicti(ae) (IHTM12221) claim or claim under section 131 of the Civil Partnership Act. If children also survive, in calculating legal rights, the net moveable estate will be divisible equally between the legitim fund (IHTM12221) and the dead’s part (IHTM12221).

If one or more of the children have discharged their claims to legitim during the lifetime of their deceased parent, those who have not discharged their claims are entitled to share the entire legitim fund.

You should refer any case where difficulties arise over the question of claim or discharge to Technical.