IHTM12151 - Succession: Intestacy: Distributions under intestacy (Scotland): Surviving spouse or civil partner
The surviving spouse or civil partner’s (IHTM11032) entitlement under an intestacy depends on what other relatives had survived the deceased at the time of death. The distribution rules if the deceased dies leaving a surviving spouse or civil partner are:
Without issue, parent, brother, sister or issue of brother or sister
The surviving spouse or civil partner takes the whole estate
With children
The surviving spouse or civil partner takes prior and legal rights (IHTM12201)
Without issue but with parents brother or sister or issue of brother or sister
The surviving spouse or civil partner takes prior and legal rights (IHTM12201)
Points to bear in mind
You will need to bear the following in mind when considering what a surviving spouse or civil partner is entitled to under intestacy.
- The intestate’s spouse or civil partner has to survive the intestate, no matter how short the period, in order to take any benefit from their estate.
- In the case of a married couple or civil partners who both die in circumstances which mean it is uncertain who died first the rule known as commorientes (IHTM12191) (where the younger is deemed to have survived the elder) does not apply. Instead it is presumed that each spouse or civil partner predeceased the other with the result that the right of the surviving spouse or civil partner are ignored when distributing under the intestacy rules.
- Where a decree of judicial separation has been made (not merely a separation agreement) then for the purpose of administering an estate a husband does not inherit any of a wife’s intestate estate which she acquires after separation. But there is no equivalent rule barring a separated wife inheriting.
- Divorced spouses or former civil partners take no interest in the estate of their former spouse or civil partners.