Succession (Scotland) Act 1964

8 Prior rights of surviving spouse [F1 or civil partner], on intestacy, in dwelling house and furniture. S

(1) Where a person dies intestate leaving a spouse [F2 or civil partner], and the intestate estate includes a relevant interest in a [F3 dwelling house mentioned in subsection (4)(a) of this section,] the surviving spouse [F2 or civil partner] shall be entitled [F4 , subject to subsection (2B) of this section,] to receive out of the intestate estate—

(a) where the value of the relevant interest does not exceed [F5 £30,000 or such larger amount as may from time to time be fixed by order of the Secretary of State]—

(i) if subsection (2) of this section does not apply, the relevant interest;

(ii) if the said subsection (2) applies, a sum equal to the value of the relevant interest;

(b) in any other case, the sum of [F5 £30,000 or such larger amount as may from time to time be fixed by order of the Secretary of State].

F6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2) This subsection shall apply for the purposes of paragraph (a) of the foregoing subsection if—

(a) the dwelling house forms part only of the subjects comprised in one tenancy or lease under which the intestate was the tenant; or

(b) the dwelling house forms the whole or part of subjects an interest in which is comprised in the intestate estate and which were used by the intestate for carrying on a trade, profession or occupation, and the value of the estate as a whole would be likely to be substantially diminished if the dwelling house were disposed of otherwise than with the assets of the trade, profession or occupation.

[F7 (2A) Where the tenant of a croft dies intestate leaving a spouse or civil partner or, where he dies leaving no spouse or civil partner, leaving a cohabitant, and the intestate estate includes a relevant interest in a dwelling house mentioned in subsection (4)(b) of this section, the surviving spouse, civil partner or, as the case may be, cohabitant shall be entitled, subject to subsection (2B) of this section, to receive out of the intestate estate—

(a) where the value of the relevant interest does not exceed the amount for the time being fixed by order under subsection (1)(a) of this section, the tenancy of the croft;

(b) in any other case, the sum for the time being fixed by order under subsection (1)(b) of this section.

(2B) If the intestate estate comprises—

(a) a relevant interest in two or more dwelling houses mentioned in subsection (4)(a) of this section, subsection (1) of this section shall have effect only in relation to such one of them as the surviving spouse or civil partner may elect for the purposes of subsection (1) within 6 months after the date of death of the intestate;

(b) a relevant interest in two or more dwelling houses mentioned in subsection (4)(b) of this section, subsection (2A) of this section shall have effect only in relation to such one of them as the surviving spouse, civil partner or cohabitant may elect for the purposes of subsection (2A) within 6 months after that date;

(c) a relevant interest in both—

(i) one or more dwelling houses mentioned in subsection (4)(a) of this section; and

(ii) one or more dwelling houses mentioned in subsection (4)(b) of this section,

the surviving spouse or civil partner shall not be entitled to receive both the entitlement under subsection (1) of this section and that under subsection (2A) of this section and must elect within 6 months after that date whether to take the entitlement under the said subsection (1) or under the said subsection (2A).]

(3) Where a person dies intestate leaving a spouse [F8 or civil partner], and the intestate estate includes the furniture and plenishings of a dwelling house to which this section applies (whether or not the dwelling house is comprised in the intestate estate), the surviving spouse [F8 or civil partner] shall be entitled to receive out of the intestate estate—

(a) where the value of the furniture and plenishings does not exceed [F5 £8,000 or such larger amount as may from time to time be fixed by order of the Secretary of State], the whole thereof;

(b) in any other case, such part of the furniture and plenishings, to a value not exceeding [F5 £8,000 or such larger amount as may from time to time be fixed by order of the Secretary of State], as may be chosen by the surviving spouse [F8 or civil partner]:

Provided that, if the intestate estate comprises the furniture and plenishings of two or more such dwelling houses, this subsection shall have effect only in relation to the furniture and plenishings of such one of them as the surviving spouse [F8 or civil partner] may elect for the purposes of this subsection within six months of the date of death of the intestate.

[F9 (4) The dwelling house is—

(a) in a case mentioned in subsection (1) of this section, any dwelling house in which the surviving spouse or civil partner of the intestate was ordinarily resident at the date of death of the intestate and which did not, at that date, form part of a croft of which the intestate was tenant;

(b) in a case mentioned in subsection (2A) of this section, any dwelling house in which the surviving spouse, civil partner or cohabitant was ordinarily resident at the date of death of the intestate and which, at that date, formed part of a croft of which the intestate was tenant.]

(5) Where any question arises as to the value of any furniture or plenishings, or of any interest in a dwelling house, for the purposes of any provision of this section the question shall be determined by arbitration by a single arbiter appointed, in default of agreement, by the sheriff of the county in which the intestate was domiciled at the date of his death or, if that county is uncertain or the intestate was domiciled furth of Scotland, the sheriff of the Lothians and Peebles at Edinburgh.

(6) In this section—

[F10 (za) “ cohabitant ” means a person—

(i) who was living with the intestate as if married to him; or

(ii) who was living with the intestate as if in civil partnership with him,

and had been so living for at least 2 years.]

(a) “dwelling house” includes a part of a building occupied (at the date of death of the intestate) as a separate dwelling; and any reference to a dwelling house shall be construed as including any garden or portion of ground attached to, and usually occupied with, the dwelling house or otherwise required for the amenity or convenience of the dwelling house;

(b) “furniture and plenishings” includes garden effects, domestic animals, plate, plated articles, linen, china, glass, books, pictures, prints, articles of household use and consumable stores; but does not include any article or animal used at the date of death of the intestate for business purposes, or money or securities for money, or any heirloom;

(c) “heirloom”, in relation to an intestate estate, means any article which has associations with the intestate’s family of such nature and extent that it ought to pass to some member of that family other than the surviving spouse of the intestate;

(d) “relevant interest”, in relation to a dwelling house, means the interest therein of an owner, or the interest therein of a tenant, subject in either case to any heritable debt secured over the interest; and for the purposes of this definition “tenant” means a tenant under a tenancy or lease (whether of the dwelling house alone or of the dwelling house together with other subjects) which is not a tenancy to which the Rent and Mortgage Interest Restrictions Acts 1920 to 1939 apply.

Textual Amendments

F1 Words in s. 8 sidenote inserted (5.12.2005) by virtue of Civil Partnership Act 2004 (c. 33), ss. 261(2), 263(10)(c), Sch. 28 para. 4; S.S.I. 2005/604, {art. (2(c)}

F2 Words in s. 8(1) inserted (5.12.2005) by Civil Partnership Act 2004 (c. 33), ss. 261(2), 263(10)(c), Sch. 28 para. 4; S.S.I. 2005/604, {art. (2(c)}

F3 Words in s. 8(1) substituted (28.1.2008) by Crofting Reform etc. Act 2007 (asp 7), ss. 14(2)(a), 43 (with ss. 40,43(2)); S.S.I. 2007/568, art. 2

F4 Words in s. 8(1) inserted (28.1.2008) by Crofting Reform etc. Act 2007 (asp 7), ss. 14(2)(b), 43 (with ss. 40,43(2)); S.S.I. 2007/568, art. 2

F5 Words substituted by Succession (Scotland) Act 1973 (c. 25), s. 1(1)(a)

F6 S. 8(1) proviso repealed (28.1.2008) by Crofting Reform etc. Act 2007 (asp 7), ss. 14(2)(c), 43 (with ss. 40,43(2)); S.S.I. 2007/568, art. 2

F7 S. 8(2A)(2B) inserted (28.1.2008) by Crofting Reform etc. Act 2007 (asp 7), ss. 14(3), 43 (with ss. 40,43(2)); S.S.I. 2007/568, art. 2

F8 Words in s. 8(3) inserted (5.12.2005) by Civil Partnership Act 2004 (c. 33), ss. 261(2), 263(10)(c), Sch. 28 para. 4; S.S.I. 2005/604, {art. (2(c)}

F9 S. 8(4) substituted (28.1.2008) by Crofting Reform etc. Act 2007 (asp 7), ss. 14(4), 43 (with ss. 40,43(2)); S.S.I. 2007/568, art. 2

F10 S. 8(6)(za) inserted (28.1.2008) by Crofting Reform etc. Act 2007 (asp 7), ss. 14(5), 43 (with ss. 40,43(2)); S.S.I. 2007/568, art. 2

Modifications etc. (not altering text)

C1 S. 8 saved (25.7.1976) by Prescription and Limitation (Scotland) Act 1973 (c. 52), s. 6(2), Sch. 1 para. 2(f)

C2 S. 8(1)(a)(b): new amount of £130,000 specified (1.4.1999) by S.I. 1999/445, art. 2, Sch.

C3 S. 8(1)(a)(b): new amount of £300,000 specified (1.6.2005) by The Prior Rights of Surviving Spouse (Scotland) Order 2005 (S.S.I. 2005/252), art. 2, Sch.

C4 S. 8(1)(a)(b): new amount of £473,000 specified (1.2.2012) by The Prior Rights of Surviving Spouse and Civil Partner (Scotland) Order 2011 (S.S.I. 2011/436), art. 2, Sch.

C5 S. 8(3)(a)(b): new amount of £22,000 specified (1.4.1999) by S.I. 1999/445, art. 2, Sch.

C6 S. 8(3)(a)(b): new amount of £24,000 specified (1.6.2005) by The Prior Rights of Surviving Spouse (Scotland) Order 2005 (S.S.I. 2005/252), art. 2, Sch.

C7 S. 8(3)(a)(b): new amount of £29,000 specified (1.2.2012) by The Prior Rights of Surviving Spouse and Civil Partner (Scotland) Order 2011 (S.S.I. 2011/436), art. 2, Sch.