The impact on family law of the Trusts and Succession (Scotland) Act 2024

The Scullion LAW Difference – Taking the Time to Understand Your Needs

Separation can be a difficult time when it can be very challenging to make decisions for the future because of the feelings of loss, fear and uncertainty you might be experiencing.

At the beginning, sometimes all you can do is get through a day at a time. These feelings eventually pass, and you will be able to move on with your life leaving the separation in the past.

However, it can take time to get to that point. We appreciate that and we will guide you through your separation in a way that is tailored to your needs wherever you are on your separating journey.

The importance of reviewing your Will after a separation or divorce

One of the areas of advice that we always cover with our clients at the very outset is the importance of making or renewing their Will now that circumstances have changed and you are no longer with your husband, wife or civil partner.

What is the risk of not updating your Will?

There is usually a period of separation when we resolve all of the child care and financial matters hopefully by negotiation and the divorce or dissolution of the civil partnership then becomes a paperwork exercise once the legal contract setting out the terms of any negotiated settlement, the Minute of Agreement, is entered into.

There is therefore a period of time when you are separated but not yet divorced or your civil partnership is not yet dissolved.

What has changed in Scotland and why it is vital to ensure your will is up to date at all times during your separation or divorce?

New legislation came into force in 2024 which will result in your spouse or civil partner inheriting your entire estate in the event of your death, even if you are separated, if:

You are still married or in a civil partnership at the time of your death;
You do not have a Will at the time of your death; and
You are not survived by any children

If you do have children, but have not made a Will, the law of Scotland provides that a spouse or civil partner will have certain limited claims on your estate and, thereafter, the balance will go to the children.

What governs the separation of my estate if I have not changed my Will?

Until such time as a Minute of Agreement has been entered into, any Will made prior to your separation will likely govern the division of your estate.

In order to prevent this, if you have not made or updated your Will following your separation you should do so.

Need to Speak to a Family Lawyer?

This article was prepared by Judith Higson, Executive Director and Head of Family Law.

The content of this article is for information only, is not intended to be construed as legal advice, and should not be treated as a substitute for specific advice. Scullion LAW accepts no responsibility for the content of any third-party website to which this article refers.