Separated spouses should not automatically inherit on the death of their husband or wife without a will, where there are no children, the Law Society of Scotland said today.

In its response to a Scottish Government consultation on the law of succession, the Society states that wholesale reform is not required but "particular aspects would merit adjustment".

It puts forward an alternative to the proposal for a surviving spouse/civil partner to take the whole estate in the absence of issue. 

That would mean, the Society comments, that "a separated spouse/civil partner would take the entire estate no matter the state of the relationship at the time of death. This cannot be assumed to be in any way what the deceased in these circumstances would have wished to happen". One way to resolve this, the Society states, would be to use a test of "living together as husband and wife/civil partners" before the surviving partner could inherit. "This is a concept recognised in both Scots family law and (for many years and for many purposes) tax law. It would not be an issue in most cases where the deceased was survived by a spouse/civil partner and no issue, but would resolve both current anomalies and further ones that would arise from the proposed new law."

The current anomaly the Society highlights is the fact that a surviving spouse who lives in a property wholly or partly owned by the deceased has a claim on the property under prior rights, whether or not the couple were living together at the time of death, whereas one not living in a house owned by the deceased does not.

The Society is not persuaded of the advantages of adopting either of the alternative models put forward by the Government, the community property regime of Washington State, or the right to the estate up to a certain value as in British Columbia, though it acknowledges that the latter is closer to the current Scottish position – depending on the threshold actually adopted.

On the position of stepchildren, it takes no view on whether they should be able to inherit in the same way as adopted children, a point on which different views have been expressed, but notes that it could potentially mean they inherit both from their natural and their step-parents. However it would support a provision that they should be able to inherit to avoid a step-parent's estate passing to the Crown.

The Society recently published a paper proposing extended time limits within which a cohabitant of a deceased can apply for provision out of the estate, and refers to this in the section of the consultation dealing with cohabitants' rights. However it says it is a matter for policymakers whether cohabitants should have automatic rights in an estate.

And it calls for clarification of the law, arising from the recent case where a convicted murderer was named as executor in their victim's will, through legislation as to the circumstances where an application for removal can be made.

With the paper mainly dealing with issues that arise where someone dies without having made a will, the Society opens its response by calling for the importance of making a will, and keeping it updated, to be the subject of greater promotion in Scotland. "We also consider that there would be merit in consideration being given to the will making process, in particular the ease with which individuals can make a will and how this may be improved, for example, by digital means", it states.

Gordon Wyllie, convener of the Society’s Trusts & Succession Law Subcommittee, said: "Aspects of the law covering inheritance rules in Scotland could be made fairer. The Government’s proposals only relate to cases where an individual has died without a will and we know from research conducted by the Scottish Consumer Council in 2006 that only 37% of people in Scotland had made a will. While we agree that the current approach requires reform, we must stress the importance of making a will as the best way to ensure that an individual’s wishes are properly covered."

Click here to view the full response.