Your Questions Answered: What Rights Do Stepchildren Have In The Estate Of Their Stepparent?

• Published date: 04 September 2023
• Subject Matter: Family and Matrimonial, Wills/ Intestacy/ Estate Planning
• Law Firm: Shepherd and Wedderburn LLP
• Author: Mr Susie Tweedie

The results of the 2011 census revealed more blended and reconstituted families in Scotland than ever before, including over 70,000 stepfamilies with dependent children (a figure which we might reasonably expect to increase when the 2022 census results are made available). It is trite to say that family life in Scotland has changed immeasurably over the last 60 years, yet large parts of the law governing succession within the family have remained stagnant since 1964. Throughout the numerous attempts at modernisation, a central issue has been whether stepchildren should have rights akin to those of blood relations in determining the succession to an estate. So, what is the current position, and how might blended families approach succession planning accordingly?

The Status Quo

The Scottish concept of legal rights entitles biological and adopted children to a share of their parent's net moveable estate (a portion of everything excluding land and buildings, after deduction of certain debts and expenses) even in the scenario where their parent has left a Will. These rights do not, however, extend to stepchildren, who have no right to automatic inheritance regardless of the circumstances.

While there has been some public support for analogous rights for stepchildren, there are no imminent plans to make such a change to the law. As is often the case in matters of family and succession, the preference among lawmakers for clear and simple rules continues to prevail over the possibility of a more nuanced (but undoubtedly, more complex) approach.

To many, the inability of stepchildren to make a claim on their stepparent's estate will seem equitable on the face of it and, indeed, may even appear to be a reasonable protection for blood relatives. However, the rules can lead to some unfortunate and seemingly anomalous outcomes, as illustrated by the following example:

Consider a family made up A and B and their two children, C and D. B dies at a relatively young age and their entire estate passes automatically to A. A later remarries B2, who has two children of their own from a previous marriage, E and F. B2 never formally adopts C and D. Some years later, A dies without a Will and their entire estate (which includes the wealth they inherited from their first spouse B) passes to B2. Eventually, when B2 dies they provide that their estate (which, naturally, includes wealth inherited from A and, initially, from B) should...