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Mixing without Matching: Fractions, Slabs, and the Succession Rights of the Surviving Spouse and Children

Document Cited in Related
Vincent
DOI10.3366/elr.2020.0608
Date01 January 2020
Published date01 January 2020
Pages118-123
FRACTIONS AND SLABS

Jack dies intestate, survived by his widow, Jill, and by their two children. How should Jack's estate be divided as between Jill and the children? There are two main ways in which this might be done. Either Jill and the children can each be given a fractional share in the estate (for example, one-half each, or two-thirds to Jill and one-third to the children) or Jill can be given an initial slab of estate and the children some or all of the rest.1 By and large, countries in the Civil Law tradition favour a fractional system and those in the Common Law tradition a slab system.2 And in the former, where even in cases of testacy the spouse and children are entitled to a forced share (the equivalent of legal rights in Scotland), the forced share too is allocated on a fractional basis. Importantly, the choice between these methods of division is a choice of technique rather than a choice of substance: whether a spouse receives more under a slab system than under a fractional system will depend, not on the type of system, but on the size of the slab or, as the case may be, of the fractions.

And what of Scotland? Unable, apparently, to choose between a fractional system and a slab system, Scotland elects for – both. An intestate estate is divided according to a slab system, allowing the surviving spouse to scoop up, as prior rights, the family home (up to a value of £473,000), its contents (up to a value of £29,000), and £50,000 in financial provision.3 If there is anything left, which usually there is not, most (though currently not all)4 of it goes to the children. But the position is entirely different for legal rights (the Scottish version of a forced share) in cases of testacy. These are allocated on a fractional basis and one, moreover, which puts children on the same footing as the spouse. Thus, regardless of the terms of Jack's will, Jill is entitled to one-third of the value of the moveable estate and the children to another third.5

No other country, so far as I know, mixes a slab system with a fractional system, using one for intestacy and the other for the forced share. Scotland is unwise to try to do so. Of course, the forced share need not precisely follow the rules on intestacy. The situations are distinct, not least in the amount of property at stake. Yet the two must fit together, and must proceed from a consistent policy basis. To treat spouse and children equally in respect of the forced share and grossly unequally in cases of intestacy is a difference beyond rational defence. Nor can it work in practice. In the well-known case of Kerr, Petitioner,6 George Kerr died survived by...

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