(Last Updated On: 7th April 2021)

Are you automatically entitled to a share of your deceased spouse’s or civil partner’s estate? In this article, I share basic information on the rights of spouses and civil partners on death in three different legal systems: England and Wales, Scotland, and Spain.

Bear in mind that

  • ‘English’ refers to concepts, language, texts, etc. from England and Wales only, as opposed to other jurisdictions where they may exist or apply.
  • ‘Spanish’ refers to concepts, language, texts, etc. from Spain’s derecho común (subject to the Civil Code) only, and does not include the local laws of specific regions.

England and Wales

A surviving spouse or civil partner is not automatically entitled to a share of the deceased’s estate. According to the fundamental succession principle of testamentary freedom. in England and Wales people can leave their estate to whomever they want.

Under the Inheritance (Provision for Family and Dependants) Act 1975, six categories of people can apply to the court for financial provision, if they think that the deceased failed to make reasonable provision. When making such an application for financial provision, a surviving spouse or civil partner is entitled to a higher level of financial provision (the ‘surviving spouse standard’, based on what would be reasonable in all circumstances) than any other category of eligible claimants (entitled to the ‘maintenance standard’, based on what would be reasonable in the circumstances for their maintenance).

By right of survivorship – which is not exclusive to surviving spouses and civil partners but applicable to joint property owners – a surviving spouse or civil partner can automatically inherit the deceased’s share on jointly-owned property. For more information on this point, read my article on passing jointly-owned property on death.

Scotland

In Scotland, the principle of testamentary freedom is restricted by legal rights, under which a portion of the deceased’s estate can be claimed.

Legal rights are available to surviving spouses or civil partners and children from the deceased’s moveable estate where

  • there is a will
  • there is no will, and there are assets left in the estate after satisfying the prior rights (explained below).

Legal rights for surviving spouses or civil partners are available as follows:

If a person dies domiciled in Scotland leaving only a surviving spouse or civil partner, the surviving spouse or civil partner is entitled to one-half share of the net movable estate.

If the person dies leaving a surviving spouse or civil partner and children: the surviving spouse or civil partner is entitled to a one-third share of the net movable estate, and the children are collectively entitled to a one-third share of the net movable estate.

Prior rights are available only to the surviving spouse or civil partner of someone who died without leaving a will. The prior rights take priority over any other rights, and this is what they entitle a surviving spouse or civil partner to:

  • the house where the surviving spouse or civil partner lived, if valued at £473,000 or less. If the house is valued over that amount, the surviving spouse or civil partner is entitled to £473,000 in money.
  • furnishings and furniture up to £29,000 in value.
  • cash from the estate. The amount will depend on whether the deceased died leaving children or descendants. If there are no children or descendants, the surviving spouse or civil partner is entitled to the first £89,000 out of the estate. If there are children or descendants, the surviving spouse or civil partner is entitled to the first £50,000 out of the estate.

Spain

Spain has a forced heirship regime in place. According to the forced heirship rules, people can only freely dispose of one third of their assets, irrespective of whether they leave a will or not. Two thirds of the assets are distributed among a series of relatives who are entitled to receive after formally accepting the inheritance by signing a deed before a notario.

Related read: 9 curiosities related to Spanish wills and succession

The rights of a surviving spouse on death are called legítima del cónyuge viudo (widowed spouse’s forced share). They are a life interest (usufructo vitalicio) on part of the deceased’s estate.

How much of the deceased’s estate a surviving spouse is entitled to will depend on whether there are surviving issue or ascendants, too.

If a person dies leaving a surviving spouse and children, the surviving spouse is entitled to a life interest on one third of the deceased’s estate.

If a person dies leaving a surviving spouse and ascendants, the surviving spouse is entitled to a life interest on one half of the deceased’s estate.

If a person dies leaving neither issue nor ascendants, the surviving spouse is entitled to a life interest on two thirds of the deceased’s estate.

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This article is for informational purposes only, does not constitute legal advice and should not be relied upon as such. Any reliance you place on such information is strictly at your own risk. Please ensure that any information available through this website meets your requirements. ICR Translations will not be liable for any loss or damage arising from loss of data or profits as a result of, or in connection with, the use of this website.

IRENE CORCHADO RESMELLA is a Spanish translator based in Edinburgh. A Chartered Linguist and member of the CIOL, she is also an English-Spanish sworn translator appointed by the Spanish Ministry of Foreign Affairs. Irene specialises in sworn and legal translation (particularly in wills and succession) and is an Affiliate member of STEP. ICR Translations is registered with the Information Commissioner's Office and has professional indemnity insurance.

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