28 January 2020

26th January was Spouse’s Day (don’t worry, I missed it too). This unofficial holiday is designed to encourage people to let their spouses* know how much they are loved, respected and appreciated. I am sure you didn’t start reading this blog for relationship advice but my top tip would be to do this more than once a year if you want to stay out of the divorce court. But that’s by the by.

There are a number of ways you can show appreciation to your spouse: spend quality time with them, do their chores, or make them their favourite dinner, get your legal affairs in order…….

OK, so maybe your spouse won’t immediately see the value in you having your Will, Power of Attorney or pension nomination form in place, but doing so could have enormous benefits for them in the long-term should something happen to you.

I speak to couples on a daily basis about their personal and legal affairs and there are a number of common misconceptions about the rights and authority people have over their spouse’s affairs:-

1. If my spouse dies, I will inherit their entire estate. The only way this can be guaranteed is if your spouse makes provision for this in his or her Will. If there isn’t a Will, then the laws of intestacy apply. A spouse has certain rights in this situation but, in broad terms, the children, siblings and even parents of the deceased take preference.
    
2. If my spouse dies, I will be entitled to receive their pension. This is likely to depend on the type of pension in question, but where the pension provider has the discretion to decide who receives the benefits from the pension after a person’s death, this is not a given. It is possible for a person to put a nomination form in place to name who is to receive the pension should they die, however, if they don’t do so then the pension provider will look for more information about the person’s dependents before reaching a decision.
   
   
3. If my spouse loses capacity, I have automatic authority to make financial or welfare decisions on their behalf. In order for any individual to have this sort of authority, your spouse must have put a Power of Attorney in place appointing you as their Attorney. You may be named as their next of kin but this does not give you any legal power. If there is no Power of Attorney in place, you can apply to the court to be given the necessary powers but this is a long and expensive process.

In terms of the law of Scotland, spouses do have certain rights but these are often not as extensive as you might think. If you want to ensure that your spouse is provided for and protected in the event of your death, you should seek specialist legal advice in order to get the necessary paperwork in place. What better way to show your love and appreciation?

If you are reading this, and are a cohabiting unmarried couple, then your position is even less certain in relation to these matters as there are no automatic rights available for cohabitants as there are for spouses. Thankfully you can also take the proactive steps outlined above to ensure your partner is protected.

*References to spouse in this document also includes civil partners.

For more information, please contact a member of our Wills, Estates & Succession Planning team.