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JGM
JGM, Solicitor
Category: Scots Law
Satisfied Customers: 10092
Experience:  30 years as a practising solicitor.
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I live in Scotland, and married a widower and moved into the

Customer Question

I live in Scotland, and married a widower and moved into the house that he had previously bought 25ish years ago with his wife (who is deceased) I have been married nearly 3 years but stopped living in the house with him because life became unbearable for me, and now am living back in the house that we bought jointly when I moved (400 miles) Am I entitled to anything, if we divorce, from the first house or any of his other assets? Thank you for anybody's help in this
Submitted: 3 years ago.
Category: Scots Law
Expert:  JGM replied 3 years ago.
Thank you for your question.

Under Scots law you are not entitled to any assets that he owned before your marriage or anything that he was gifted or inherited from a third party.

You are entitled to a fair share of all property acquired during or in contemplation of the marriage.

I hope this helps. Please leave a positive response so that I am credited for my time.
JGM, Solicitor
Category: Scots Law
Satisfied Customers: 10092
Experience: 30 years as a practising solicitor.
JGM and other Scots Law Specialists are ready to help you
Customer: replied 3 years ago.


Does this also apply if he should die before me? Am I not entitled to any of his estate that he aquired before we married? It seems as though me giving up everything to come up to Scotland and be with him has left me in a situation that should he die before me, then I would be at the mercy of his family.

Expert:  JGM replied 3 years ago.
Death is a different issue from separation and divorce. If he dies and you are not divorced and have not entered into an agreement to the contrary then you would be entitled to inherit his estate to a greater or lesser extent depending on the circumstances as follows.

If a husband dies without a will after debts and other liabilities have been met, a widow, widower or a surviving civil partner has a certain " prior rights of a surviving spouse or civil partner" in the deceased person's estate, where no will has been left.

He or she is entitled to the dwelling house of the deceased in which the surviving spouse or civil partner was resident at the time of the deceased's death, plus up to the value of £29,000 any furnishings and furniture of that house. (In certain cases, e.g. where the house is a farmhouse or part of a shop, or where the house is worth more than £473,000 the entitlement is not to the house itself, but to its value up to £473,000.)

The surviving spouse or civil partner is also entitled to the first £50,000 out of the estate if the deceased left children or descendants of children or to the first £89,000 if the deceased left no children or descendants.

Prior rights are a first claim on the estate, before legal rights.

A surviving spouse or civil partner and children are entitled to certain "legal right" out of the deceased person's moveable estate. In Scots law, heritable property means land and buildings, while moveable property includes such things as money, shares, cars, furniture and jewellery.

The surviving spouse or civil partner is entitled to one-third of the deceased's moveable estate by way of legal rights if the deceased left children or descendants of children, or to one-half of it if the deceased left no such children or descendants.

If there is a will, the spouse can either take her entitlement from the will or claim legal rights, but not both. In addition prior rights don't apply where there is a will.



Customer: replied 3 years ago.


Thank you so much for your help. I have just 1 further question. My husband and his wife made identical wills, leaving the estate to each other in the event of one of them outsurviving the other, and to the children if they did not. As far as I am aware he has not made another will. Is this one still valid?


 


Many thanks again.

Expert:  JGM replied 3 years ago.
Yes it is.
Customer: replied 3 years ago.


So if he dies without making another will then his children inherit the estate?


 


Do I have any rights in that instance if he does not make another will between now and his death?

Expert:  JGM replied 3 years ago.
Subject to your legal rights claim which is detailed above and I repeat here as follows:

"A surviving spouse or civil partner and children are entitled to certain "legal rights" out of the deceased person's moveable estate. In Scots law, heritable property means land and buildings, while moveable property includes such things as money, shares, cars, furniture and jewellery.

The surviving spouse is entitled to one-third of the deceased's moveable estate by way of legal rights if the deceased left children or descendants of children, or to one-half of it if the deceased left no such children or descendants.

If there is a will, the spouse can either take her entitlement from the will or claim legal rights, but not both. In addition prior rights don't apply where there is a will."
Customer: replied 3 years ago.

So if I can just clarify here please? As it stands with his will as it is, his heritable property would be left to his children?


Even if my husband and I reached a reconciliation and I moved back into the house with him, if he died before me, I could be made homeless as I would have no legal right/claim on the heritable estate? I only have rights to the moveable estate?


Have I understood that correctly?


Thanks again for all you help.


Regards

Expert:  JGM replied 3 years ago.
Correct. He can leave his heritable estate to whoever he wants.

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