Analysis

Currently, when a person dies intestate survived by a spouse or civil partner, that spouse or civil partner has a variety of different entitlements: prior rights, which take precedence over all other claims and, subject to a financial limit, often exhaust the whole estate; legal rights, which are shared with any issue of the deceased; and rights under section 2 of the Succession (Scotland) Act 1964, though these last are postponed to preferred claimants including the deceased's issue, siblings (or their representatives, i.e. nephews and nieces) and parents.In its discussion paper, the Scottish Law Commission proposes a much simpler approach, based on two allembracing propositions.First, where a person dies leaving a spouse or civil partner but no issue, that surviving spouse or civil partner should simply take the whole estate, whatever its nature and whatever its value. 2 Secondly, where a person dies leaving both spouse or civil partner and issue, the surviving spouse or civil partner should be entitled to a fixed sum, tentatively set at £300,000, with the remainder being shared with the issue.This would mean that the whole estate goes to the spouse or civil partner where its value is less than the stated sum; if the estate's value is more, the excess would be divided equally with half going to the spouse or civil partner and the other half being shared amongst the issue. 3 In most cases this approach is likely to give rather more than currently to the spouse or civil partner, though the discussion paper provides some examples to show that the shift away from issue will often be modest.