TSEM6531 - Legal background to trusts and estates: Scottish law: legal rights of surviving spouse

The surviving spouse and the children, of a deceased person, have specific legal rights.They also have the option of whether to claim these rights. Each must make their decision. This may be influenced by what they were left in the will, or by family circumstances.

The legal rights do not create trusts, but can interact with various trust situations.

A surviving spouse of the deceased can choose to claim legal rights. The extent of the rights depends on whether there are surviving children or remoter issue. ‘Remoter issue’ includes grandchildren.

There are no surviving children or remoter issue

The surviving spouse can claim one half of the net moveable estate (TSEM6507).

There are surviving children or remoter issue

The surviving spouse can claim one third of the net moveable estate (TSEM6507).

The legal rights of a surviving widow are called jus relictae.

The legal rights of a surviving widower are called jus relicti.