IHTM04463 - Estate Duty surviving spouse exemption: benefits under intestacy and legal rights (Scotland)

Where an individual dies before electing between legal rights and conventional provisions in the estate of a pre-deceased spouse or parent, the subject chosen by their executors in the exercise of the election should be regarded as having formed part of their estate at his death.

Legal rights on intestacy, or where no conventional provisions have been conferred or any such are illusory, are property in the estate of the individual entitled to claim.

The executors of such an individual are entitled (if there is no question of insolvency or abatement of legacies) to exercise the election with the same considerations in mind as would have influenced that person had they been alive.