Civil law (sometimes simply referred to as ‘not criminal law’) is recognised as the geekier end of the Scottish Government’s Justice portfolio. It doesn’t grab headlines the way that, for example, a rise in knife crime or a shift in policing numbers does.
For this reason, it might have been easy to overlook the fact that for over ten years (and counting) policymakers have been trying to reform the law which says who should inherit when somebody dies (succession law or inheritance law).
Headline grabbing it may not be, but this is a very important topic, given the only certainty in this life is that it will eventually end for all of us.
Of course, sometimes we avoid thinking about this. We don’t make a will – even when we have family members who depend on us financially. This includes where we are not married to our partners – even though cohabitants have no automatic right to inherit from us when we die.
Against this background SPICe wants to highlight the latest Consultation on Succession from the Scottish Government. It came out in February and is open for responses until 10 May 2019, so there is still an opportunity to offer views on important topics.
Here we also bring you up to date on the consultation, starting with the important topic of what has been left out of it. For more detail on the current law and efforts to reform it, see the new SPICe Briefing, Inheritance Law in Scotland.
What is not included
The one area of the 2015 consultation that did grab some media headlines has now been dropped by the Scottish Government. This relates to the situation where close family members are at risk of receiving nothing from the deceased’s estate.
On this, some background: in our current system you can’t disinherit (leave nothing to) your spouse, civil partner or children. This includes your adult children. The protection applies even if you make a will which specifically sets out to exclude them. Instead the (rather oddly named) concept of legal rights kicks in, to give these relatives a fixed share of your property.
However, land and buildings are excluded from the scope of legal rights. This means the family home is excluded. Also, as turned out to be very significant in the context of the possible reforms, the family farm. A will can be safely made (and often is made) leaving this to the firstborn son.
At one point the Scottish Government were considering more radical protection from disinheritance for family members. One option was the possibility of a potential claim on the family home or family farm.
It was the impact on the family farm that worried parts of the farming community. It lobbied the Government hard on this topic, arguing that if parts of farms had to be sold (to meet such claims) this would affect their commercial viability. Other interested individuals and organisations had offered alternative views, including, notably, the Scottish Land Reform Review Group in 2014.
After a (small) flurry of media headlines, it all went largely quiet on the government side. Finally, in a low-key announcement late last year, the Scottish Government said any scheme to reform legal rights has been shelved. It seems it wasn’t just the farming community that had concerns about what was planned – more generally, the Government had consulted and found the Scottish public divided.
The Scottish Government has said future work will concentrate on the law where no will has been made.
The 2019 consultation – where no will has been made
It is in this area that the Government has shown a willingness to revisit controversial topics on which consensus could not be found in 2015.
What to do when there is both a spouse or civil partner and children
One thorny policy issue the Government is trying to resolve is how the estate should be divided up where there is both 1) a spouse or civil partner; and 2) children of the deceased. Under the current law, most (or all) of the estate passes to the spouse or civil partner.
This issue particularly affects ‘blended families’ where the children in question are from an earlier relationship. The spouse or civil partner may inherit everything, at the expense of these children, even though some of the assets were built up during the earlier relationship.
The Government has offered up two potential solutions, drawing on ideas from overseas. Both proposals would result in a more ‘equal’ division of the estate between the spouse or civil partner and the children than the current law.
In one proposal, the spouse or civil partner gets the deceased’s share of the property acquired during their marriage or civil partnership and shares other property with any children of the deceased.
The other proposal, as with the current law, provides a financial threshold, below which the estate passes in its entirety to the spouse or civil partner. However, unlike the current law, the threshold would be higher if the children are from the current marriage or civil partnership. It would be lower if the children are from the deceased’s previous relationship.
The Government is also thinking again about cohabitants, again with some focus on blended families.
At present, a cohabitant must apply to the court for a share of the deceased estate. The court can decide whether to grant this – and on what terms.
The current law has been much criticised. This includes for the lack of clear guidance it gives to the court and, by implication, to solicitors advising clients.
The SLC did suggest a replacement, which those consulted thought raised some issues of its own. This time the Government has drawn inspiration from overseas for one possible solution. This would involve automatic inheritance rights for cohabitants in some circumstances and a potential split of the estate between cohabitants and the deceased’s children.
While it is easy to criticise the law at it stands at present, finding public consensus on what should replace it is much harder. This is true both in the context of cohabitants and the latest proposals more generally.
SPICe will be watching developments with interest.
Sarah Harvie-Clark, Senior Researcher (Civil Law)