The Scotsman newspaper reported last month that the economic downturn had driven a rise in money disputes in Scottish families as more people lay claim to assets left behind on a family death.
Susan Masterton, Blair Cadell Personal legal department Partner and elderly care solicitors, says "there is nothing to stop children claiming their legal rights on the death of the first parent. Where the first parent to die is a child's natural parent and the surviving spouse is a stepfather or stepmother, there might be good reason for a child to claim legal rights, particularly if there are stepbrothers or sisters who might otherwise inherit their own natural parent's estate"
There has been a notable upturn over the past two years in
family disputes that are believed by experts in the field to be a
direct result of growing financial pressures, as government
austerity measures take effect and unemployment rises.
Under Scottish succession law, when someone dies the surviving spouse or civil partner and children are entitled to certain legal rights out of the deceased person's moveable estate. These rights operate regardless of whether there is a will and give children some entitlement to movable assets, such as cash, investments, insurance proceeds and the contents of the property, but not the property itself.
The surviving spouse or civil partner is entitled to a third of those assets if the deceased left children or grandchildren, or to half of it if there are no children. The child or children are, in turn, also entitled to a third of the moveable estate, or half if the deceased did not have a spouse or civil partner.
Historically, these rights have been claimed only rarely, but experts say cases in which children opt to take them up are on the rise.
Claims made by co-habitees are also becoming more prevalent, following a change in cohabitation legislation
Susan Masterton comments however that "it is still relatively rare for children to claim legal rights when an estate passes to a surviving spouse, but we are all very aware of the need to make children aware of their rights and to obtain disclaimers as necessary. It is also important to advise clients making Wills that their children have these rights"