Spouses favoured if no will exists

It suggested that widows are being discriminated against because, although they are entitled to “the house and a cash payment”, the current law allows children of the deceased to “scoop the rest” because “current laws on people who die intestate – without a written will – favour children over a wife or husband”.

In fact, current laws on people who die intestate favour the wife or husband over the children. If Jack and Jill are married, and he dies without a will, Jill is likely to take most or all of Jack’s estate. If he owned a house she will almost invariably inherit it (or his share of it, if it was co-owned). She will also take a slice (in some cases 100 per cent) of other assets. Since the house is typically the main asset, the children are usually left with little and sometimes nothing.

The rules in the 1964 Act are complex, and Jill may do less well if, for example, the house they lived in was rented rather than owned, but in such cases the size of the estate is usually fairly modest, and even then the current law makes provision for Jill. For Jill to inherit less than Jack’s children would be extremely unusual. It could happen if Jack were very wealthy, but the rich seldom die without a will. The average value of a Scottish estate on death is less than £200,000 in total. It is, therefore, only in very exceptional cases that the children would “scoop” anything.

The best evidence we have of public attitudes shows that most people want their children to inherit something when they die. Given the vicissitudes of adult partnerships, whether by marriage or cohabitation, our relationship with our children is likely to be the most permanent in life.

In a traditional nuclear family model it seldom matters how the estate is divided between the spouse and children, and children are very unlikely to claim against their own mother (or father). The crunch comes in a reconstituted family, where Jack’s children are not the children of his current wife. Should the first family be disinherited in favour of the second spouse?

Dr Dot Reid, University of Glasgow; Prof George Gretton, University of Edinburgh