Commentary on Sections Rights of succession to intestate estate
140.Section 77 of the Act implements recommendation 1 in the Scottish Law Commission Report on Succession(19), which is that where a person dies intestate (without having left a valid will) and is survived by a spouse or civil partner, but not by any children (or their descendants), the spouse or civil partner should inherit the whole of the net intestate estate.
141.Section 77 amends section 2 of the Succession (Scotland) Act 1964 (“the 1964 Act”), which regulates the ranking of claims on the intestate estate among the deceased’s relatives. Section 1(2) of the 1964 Act provides that in Part 1 of that Act any reference to an intestate estate is to be construed as a reference to so much of the net intestate estate as remains after the satisfaction of legal rights or the prior rights of a surviving spouse or civil partner, or the proportion thereof properly attributable to the intestate estate.
142.The approach in section 2 of the 1964 Act is sequential. Each paragraph in subsection (1) identifies a relative or class of relatives starting with the deceased’s children. That relative or class of relatives only have a claim on the intestate estate if the deceased is not survived by a relative or class of relatives identified in an earlier paragraph (a “prior relative”). When they have a claim, the claim is to the whole of the intestate estate and relatives or classes of relative identified in subsequent paragraphs are excluded.
143.Section 77 of the Act changes the order of succession in section 2(1) of the 1964 Act so that what is currently section 2(1)(e) (surviving spouse or civil partner) is moved up the list so that it comes after paragraph (a) (children) and before paragraph (b) (parents and siblings).
144.Section 78 amends section 29(6) of the Family Law (Scotland) Act 2006 to increase from 6 months to 12 months the period following the death of an intestate person within which any application for financial provision by a surviving cohabitant must be made to the court.