The Team

Presumed Consent – for your organs – but what about your assets?
Presumed Consent – for your organs – but what about your assets?

The Scottish Parliament has recently passed a new act that means when someone dies, there will be a presumption that their organs will be available for donation. From Autumn next year, this will become the norm and automatic donation will apply unless the individual opts out. If you wish to read the Act to find out what it says, you can do that by clicking here.

The current position is that you must consent to organ donation before your organs can be used for transplant after you pass away. People who wish to donate their organs need to opt in by registering their intention to allow that to happen.

This got us thinking about certain presumptions and death and how the law deals with your assets after your death. We quickly reached the conclusion that your assets are also dealt with on a kind of presumed consent basis under the Succession (Scotland) Act 2016.

What we mean by that is that if you don’t make a Will, the law will decide what should happen to your assets and who should receive them.

The only real similarity between the two different Acts is that you’re no longer around to see what happens.

In the case of organ donation, your organs will be used to help someone whose organs are failing. Sometimes, multiple organs are donated and help different people. Organ donation is intended to be positive and help others live longer.

When it comes to dealing with your assets, the law isn’t, perhaps, as supportive as you might think. This is especially true when it comes to couples who are in a relationship and live together but haven’t made a Will.

When someone dies without making a Will, the basic presumption is that the deceased’s assets will be handed over to their loved ones. However, if you’re not married to or in a civil partnership with your partner, then your assets won’t go to that particular loved one if you haven’t made a Will.

It’s a kind of presumed consent where you’ve done nothing and are happy to allow the state to dictate what should happen to your assets.

We encourage all our clients to opt out of the Succession (Scotland) Act 2016 by making a Will. It’s only by doing so that you can decide who should receive your assets after your death.

If you would like to discuss opting out of the Succession (Scotland) Act 2016 and making a Will, please get in touch.