Inheritance (law of succession)
Inheritance law (also known as succession law) determines what happens to somebody’s property and possessions when they die.
We are considering options on how the law covering inheritance rules in Scotland could be made fairer and to better reflect changes in society and family structures.
We published a consultation on the law of succession in February 2019. This closed on 10 May and we are now reviewing responses to this.
The consultation focuses on what should happen to a person's estate if they die intestate (without a will), leaving a surviving spouse or civil partner and children.
Other issues being considered include:
- what rights cohabitants should have (at present, there is no automatic right to inherit)
- whether step-children should have the same inheritance rights as biological or adopted children
The consultation also seeks views on a potential change in the law to allow anyone charged and convicted of murder and other crimes to be removed from being executors for their victims’ wills.
We commissioned research into intestate succession regimes in Washington State, USA, and British Columbia, Canada, to help inform the reform of inheritance law in Scotland.
Background to reform of succession law
This latest consultation is part of an ongoing process of reform of the law of succession, following a 2009 review by the Scottish Law Commission (SLC).
The Commission's report on succession made a number of recommendations, including.
- a new scheme for intestate succession
- protection from disinheritance for spouses/civil partners and options for protection of children
- further protections for cohabitants
- choice of law and jurisdiction in international law matters
- testamentary writings and special destinations
- a number of miscellaneous matters including the requirement for executors dative to obtain bonds of caution
In 2014 we consulted on recommendations in the SLC's report covering technical aspects of succession law. This led to the Succession (Scotland) Act 2016 which introduced a number of changes including the effects of divorce, dissolution or annulment on a will.
We consulted again in 2015, seeking views on some of the SLC's wider recommendations and looked specifically at:
- what should happen when there is no will
- what protections should be put in place from disinheritance
- further protection for cohabitants
It was clear from the responses that there was not enough agreement on a significant number of the recommendations to progress them further.
A key area that remained unresolved in the 2015 consultation was intestacy (when someone dies without a will). This is the focus of the 2019 consultation which sought views on a fresh approach to reform of the law.
The main piece of legislation on inheritance in Scotland is the Succession (Scotland) Act 1964. It has been amended several times, for example, to give equivalent rights to civil partners as exist for spouses.
The Family Law Act 2006 (section 29) has specific rules relating to cohabitants of people who have died intestate.
See our publication what to do after a death in Scotland for information on what to do after someone dies.