Trusts and Succession (Scotland) Act 2024

Part 2 – Succession

Effect of divorce, dissolution or annulment on special destination

137. Section 76 of the Act amends section 2 of the Succession (Scotland) Act 2016 (“the 2016 Act”).

138. Section 2 of the 2016 Act is in substance a re-enactment of both section 19 of the Family Law (Scotland) Act 2006 (“the 2006 Act”) and section 124A of the Civil Partnership Act 2004 (as inserted by paragraph 11 of schedule 1 of the 2006 Act). It is about the effect of a marriage or civil partnership ending through divorce, dissolution or annulment on a special destination. Special destinations, also sometimes known as survivorship destinations, are conditions that commonly appear in the title of property held by more than one person, usually spouses, which provide that on the death of one of the spouses their title automatically passes to the survivor. A special destination might also apply where property such as business premises is held in the name of a couple and a number of other people. Consequently even if one party executed a will leaving their interest to a third party, such a term would be ineffective and the property would still transfer to the survivor on death.

139. The effect of section 2(2) of the 2016 Act is to evacuate (or deprive of any effect) a special destination in favour of a spouse or civil partner where the marriage or civil partnership had been terminated prior to the deceased’s death unless the terms of the destination make clear that the destination is to have continued effect notwithstanding the ending of the relationship. Evacuation of the special destination is effected by treating the surviving co-proprietor as having already died before the deceased. The result is that there is deemed to be no survivor in whose favour the destination operates, so the deceased’s interest in the property falls instead into their own estate for succession purposes. Section 76 of the Act amends section 2(2) to make clear that this is only deemed to be the case for the purposes of succession to the deceased’s interest in the jointly held property.

Rights of succession to intestate estate

140. Section 77 of the Act implements recommendation 1 in the Scottish Law Commission Report on Succession(19), which is that where a person dies intestate (without having left a valid will) and is survived by a spouse or civil partner, but not by any children (or their descendants), the spouse or civil partner should inherit the whole of the net intestate estate.

141. Section 77 amends section 2 of the Succession (Scotland) Act 1964 (“the 1964 Act”), which regulates the ranking of claims on the intestate estate among the deceased’s relatives. Section 1(2) of the 1964 Act provides that in Part 1 of that Act any reference to an intestate estate is to be construed as a reference to so much of the net intestate estate as remains after the satisfaction of legal rights or the prior rights of a surviving spouse or civil partner, or the proportion thereof properly attributable to the intestate estate.

142. The approach in section 2 of the 1964 Act is sequential. Each paragraph in subsection (1) identifies a relative or class of relatives starting with the deceased’s children. That relative or class of relatives only have a claim on the intestate estate if the deceased is not survived by a relative or class of relatives identified in an earlier paragraph (a “prior relative”). When they have a claim, the claim is to the whole of the intestate estate and relatives or classes of relative identified in subsequent paragraphs are excluded.

143. Section 77 of the Act changes the order of succession in section 2(1) of the 1964 Act so that what is currently section 2(1)(e) (surviving spouse or civil partner) is moved up the list so that it comes after paragraph (a) (children) and before paragraph (b) (parents and siblings).

144. Section 78 amends section 29(6) of the Family Law (Scotland) Act 2006 to increase from 6 months to 12 months the period following the death of an intestate person within which any application for financial provision by a surviving cohabitant must be made to the court.

19

The Report is at https://www.scotlawcom.gov.uk/files/7112/7989/7451/rep215.pdf.