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If the deceased has not left a Will, their spouse or civil partner will have a right, known as a Prior Right, in the deceased’s estate. In the event of intestacy, this Prior Right is met before the other default rules on intestacy apply, giving the surviving spouse or civil partner a first claim on the estate.

Prior Rights entitle surviving spouses or civil partners to inherit:

  • the deceased’s dwelling house if the partner was resident in the house at the time of the deceased’s death (provided that the home is valued at less than £473,000);
  • furniture/furnishings from the dwelling house up to the value of £29,000; and
  • a cash sum from the estate: £50,000 if the deceased had children or descendants, or £89,000 if the deceased did not leave children or descendants. “Descendants” refers to direct descendants only (e.g. grandchildren or great-grandchildren, but not a niece or nephew).

The maximum value of the prior right is therefore £552,000 if the deceased had children or descendants, and £591,000 if they did not.

We are aware that members of the public often believe that a surviving spouse or civil partner will automatically inherit everything. This is not true. Once the prior right is met, children or descendants will also have a claim to the estate according to the Legal Rights to the estate. The value of most estates is less than the £552,000 “cap” on Prior Rights. The deceased may wish to provide for their children financially on death, but this will not be possible if their estate is distributed entirely under their partner’s Prior Right.

If you and your partner are not married or in a civil partnership, your partner will not automatically be entitled to any of your assets in the event of your death. The rules on intestacy can have particularly adverse consequences for a surviving cohabiting partner, who would not be entitled to their partner’s share of a jointly-owned property following their partner’s death. The only way to financially protect a long-term partner is to ensure that there is a legally valid Will. 

Even if the deceased was married or in a civil partnership, the Prior Right might not reflect their testamentary intentions. For example, they may have wished for their children to inherit all of their money, and for their spouse to have their joint home only. It is also important to note that a spouse or civil partner can claim their Prior Right even if the couple had separated at the time of the deceased’s death. Here at Wilson & Fish, we strongly advise that every adult makes a Will, regardless of the size of their estate.

Wilson & Fish Expert Executry and Probate Solicitors Glasgow, Scotland

At Wilson & Fish Solicitors, we specialise in Probate and Executry services. We are based in Glasgow, and advise clients across Scotland, including from Ayrshire, Edinburgh, Aberdeen, Dundee, Paisley, East Kilbride and Stirling. If you have any questions regarding Prior Rights or intestate estates more generally please contact us today on 01412227951 or through our online enquiry form.

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