Seòmar agus comataidhean

Law Society for Scotland submission of 5 January 2022

PE1904/C - Change Scots law to disqualify estranged spouses from making claims on an estate

Thank you for your letter of 8 December 2021 seeking the Law Society of Scotland’s views on matters relating to this petition. Our Trust and Succession Law Sub-committee are pleased to provide the following comments.

General comments

In relation to this matter generally, we consider it appropriate to draw a distinction between the treatment of testate estates and intestate estates.

Testate cases

We note that the petition calls on the Scottish Parliament “to urge the Scottish Government to define in law the difference between a legally married cohabiting couple and a legally married non-cohabiting couple, for the purposes of ensuring that an estranged spouse cannot inherit their spouse’s assets.” Taken literally, this could have the effect of imposing a prohibition on parties who are married but separated, from making a will leaving property to each other should they wish to do so. It seems unlikely that this is what is intended by the Petitioner and indeed, in the interests of freedom of testation, we would not support such a change in the law.

There is already some degree of protection provided in relation to separated spouses or civil partners where there has been a divorce, dissolution or annulment. Section 1 of the Succession (Scotland) Law 2016 provides that where a marriage or civil partnership is terminated by divorce, dissolution or annulment, any benefit under a will conferred by the testator upon the former spouse or civil partner will be revoked, unless the will expressly provides otherwise. This applies only where the deceased has died after the divorce, dissolution or annulment has been obtained and after 1 November 2016.

However, in both testate and intestate cases, an estranged spouse or civil partner will be able to claim legal rights in their deceased partner's estate, no matter the terms of the will. This will amount to the value of one half or one third (depending on whether there are children) of the deceased's moveable estate. The Scottish Government has indicated an intention to leave this part of the law of succession unchanged. Of course, while the deceased was alive, an estranged partner may have had a claim under family law and leaving the estranged partner able to make a claim to legal rights following their spouse or partner's death may be regarded as a something of a substitute for such lifetime rights.

Intestate cases

The model of intestate succession in Scotland is a default system for those who die without a valid will. We note, however, that a significant proportion of individuals in Scotland do not have a will and therefore the law of intestacy has the potential to apply to a large part of our society.

In relation to intestate succession, we note that the Scottish Government has previously indicated an intention to legislate without further consultation in two circumstances:

1. Where the deceased is survived by children/issue and no spouse/civil partner, in which case the issue would take the whole estate.
2. Where the deceased is survived by a spouse/civil partner and no issue, in which case the spouse/civil partner would take the whole estate.

In the second circumstance under the present law, a surviving spouse/civil partner would take prior rights and legal rights. The entitlement under prior rights to a dwelling house (or share thereof) and to furniture/furnishings will be dependent on the place of residence of the surviving spouse/civil partner at the time of the deceased’s death, and therefore the circumstances of an estranged couple may restrict the entitlement.

In our response to the Scottish Government’s 2019 consultation, we suggested alternative treatment of a spouse who was separated from the deceased at the time of their death. Our comments in this regard are set out in full in our response to that consultation.

The Committee particularly sought comments on the following matters:

How estrangement is defined in Scots Law (if at all) and at which point estrangement is deemed to have occurred

We are not aware of any definition of estrangement within Scots law, either as set out in legislation or case law.

As set out in our response to the Scottish Government consultation, we would suggest that using a test of ‘living together as husband and wife/spouses/civil partners’ would be most appropriate to determine the separation of spouses/civil partners for any change in the law in connection with intestate estates. This is a test which is well understood, legislated, and litigated in the realms of family law (for example, in the context of assessing the date of separation for the purposes of divorce in Scots law) and in tax law.

If the approach in the petition were to be followed, we suggest that there may be merit in considering the potential introduction of a time-requirement before excluding a survivors’ prior rights and legal rights. This may help to reduce the potential for unfair situations, such as, by accommodating circumstances where parties have separated and may have been considering re-kindling their relationship at the time of death of one of them. For example, it could be provided that separated spouses/civil partners would be entitled to benefit if they been living together as husband and wife/spouses/civil partners at any time in the six months before the death.

In addition, we recognise that there may be some circumstances where imposing a ‘living together as if husband and wife/spouses/civil partners’ test could present unfair results if applied without some discretion – for example, where one partner is in long-term care. There are likely to be some cases where some involvement of the courts is necessary so as to accommodate the variety of circumstances in which separation can occur.

Whether there is an anomaly arising from the surviving partner of an estranged couple being able to benefit from the other’s estate (i.e. where they are no longer living together, but divorce has not yet taken place) and Whether, in your view, the current situation poses any risk to justice.

The surviving partner of a separated couple will currently be able to benefit from the other’s testate estate before the granting of a divorce, dissolution or annulment if provided for in the deceased’s will, or as noted above by the operation of legal rights, and after a divorce, dissolution or annulment if expressly provided for in the will.

As highlighted above, we do not consider that the current situation in terms of testate estates should be amended. It is open to a testator to alter the terms of their will following a separation should they wish to do so. While there may be situations where a deceased had no longer intended or wished for a separated spouse or civil partner to benefit from their estate, but they had not amended their will accordingly, we suggested such ‘hard cases’ would not merit altering the law to the infringement of freedom of testation. Given the freedom of testation recognised in Scots law, we do not consider this creates an anomaly, sufficient to give rise to a change of the law.

In relation to intestate estates, we recognise that the current law may be contrary to a deceased’s wishes in some cases and so it could be said that an anomaly arises from the surviving partner being able to benefit. Indeed, our response to the Scottish Government’s 2019 consultation anticipated, in certain respects, the point now raised by the Petition. As indicated above, in our consultation response we suggested using the test of ‘living together as husband and wife/civil partners’ before the surviving spouse could inherit on intestacy to “resolve current anomalies (i.e. those which can arise where spouses or civil partners are separated at the time of the death of one of the parties).”

More generally, but importantly, the stated intention of the Scottish Government to alter the law on intestacy (so that, in particular, where a deceased is survived by a spouse/civil partner and no issue, the survivor would take the whole estate) goes some way further than the current legal position and we consider that this could pose a risk to justice which merits limitation as we suggested in our response to the 2019 consultation.

All this said, it remains essential to recognise the benefits and importance of making a will, and keeping it updated, and we consider that this should be the subject of greater promotion in Scotland.

We hope this information is helpful. If we can be of any further assistance, please do not hesitate to contact me.