With effect from 1st February 2012 the prior rights to which a surviving spouse or civil partner is entitled if his or her spouse or civil partner predeceases without leaving a Will have been amended. The changes have been made by The Prior Rights of Surviving Spouse and Civil Partner (Scotland) Order 2011.
The rules which applied prior to 1st February 2012 allow the surviving spouse or civil partner three separate prior rights – (1) a housing right, (2) a right to furnishings and plenishings of a dwellinghouse and (3) a financial right.
The rights (pre 1st February 2012) can be summarised as follows:-
(1) HOUSING RIGHT
Where the deceased had an interest as owner or tenant in a dwellinghouse in which the surviving spouse or civil partner was ordinarily resident, the surviving spouse or civil partner has a right:
(a) where the value of the interest does not exceed £300,000, to the interest, or
(b) in any other case to the sum of £300,000
(2) FURNITURE AND PLENISHINGS
Where the deceased owned the furniture and plenishings of a dwellinghouse in which the surviving spouse or civil partner was ordinarily resident, the surviving spouse or civil partner has right:
(a) where the value of the furniture and plenishings does not exceed £24,000 to the whole of the furniture and plenishings; or
(b) in any other case, to such part of the furnitture and plenishings, to a value not exceeding £24,000, as the surviving spouse or civil partner may choose.
(3) FINANCIAL RIGHT
The surviving spouse or civil partner has a right -
(a) where the deceased left issue, to the sum of £42,000; or
(b) where the deceased left no issue, to the sum of £75,000.
As from 1st February 2012 the amount under the Housing prior right increased from £300,000 to £473,000, the amount under the furniture and plenishings prior right increased to £29,000 and the amounts under the financial prior right increased to £50,000 (where the deceased leaves issue) and £89,000 (where there is no issue).
The operation of prior rights is just one of the factors to be considered carefully by anyone who is contemplating making a Will. In some circumstances it can be advantageous to rely on the operation of prior rights. In other circumstances it is important to ensure that prior rights do not operate. It all depends on the individual’s family situation and ultimate wishes. Expert legal advice is essential.