Cohabitants and Mistresses

The Scottish Law Commission yesterday published its Report on the Law of Succession to the Scottish Government with plans to modernise Scotland’s wills and inheritance system. Professor Joseph Thomson, the lead commissioner on the Succession project said: "The aim is to simplify the law radically by providing rules which are easily understood and which at the same time reflect the nature of family structures in contemporary Scotland." 



The report recommends that when a person dies without making a will, the deceased's surviving spouse or civil partner will inherit the whole estate up to the value of a threshold sum after which the remainder of the estate will be shared equally with the deceased's issue. The report proceeds on the basis that the threshold sum should be £300,000 but recognises that the precise sum is a political question for the Scottish Parliament. Where there is no surviving spouse or civil partner, the deceased's issue will inherit the whole estate.



If there is a will and the deceased's surviving spouse or civil partner is disinherited, the report recommends that they will be entitled to a legal share amounting to 25% of what they would have inherited if the deceased had died intestate. If children are disinherited, the report offers two possible scenarios. First, the children would be entitled to a legal share amounting to 25% of what they would have inherited if the deceased had died intestate. Second, and more radically, dependent children should be entitled to a capital sum 
calculated by reference to their maintenance needs: but otherwise a person would be free to leave his estate as he or she chose and his wishes could not be disturbed by claims from adult children. Which scheme should be adopted is again a political question for the Scottish Parliament. 



With regard to cohabitants the report says;

"It is possible that the deceased was survived by both a cohabitant and a spouse or civil partner. In this situation both the cohabitant and the spouse or civil partner will have succession rights. Where the deceased died intestate we recommend that the amount which the spouse or civil partner would otherwise receive should be shared with the cohabitant. The amount due to the latter will depend on the 'appropriate percentage', but can never be more than what the spouse or civil partner receives. And where the deceased died testate the cohabitant's claim will be the appropriate percentage of the legal share to which the spouse or civil partner is entitled. Thus, in this situation too, the cohabitant's entitlement can never exceed that of the spouse or civil partner."

Unfortunately all does not bode well for sensible debate. Tanya Thompson of The Scotsman makes sensational headlines with her article Mistresses should get share of dead lovers' estates, says Law Commission here.

Full Report Source Scottish Law Commission 15 April 2009