What happens if someone dies without a will in Scotland?
Prior rights, legal rights, who inherits in what order, and where that leaves unmarried partners.
Read the guideThe short answer
Not completely. In Scotland, a person's children and their husband, wife or civil partner have legal rights, which let them claim a fixed share of the estate whatever the will says. Legal rights only come from the moveable estate, such as money, investments and belongings, not from the house or other land. Children share one third of the moveable estate if there is a surviving spouse or civil partner, and one half if there is not.
In England and Wales, you can in principle leave your estate to anyone you choose, and family members who are left out have to go to court to ask for reasonable provision. Scotland works differently. Scots law has protected close family members from being disinherited for centuries, through a set of automatic entitlements known as legal rights. If you are making a will, or you are an executor or a family member dealing with an estate, it pays to understand how they work.
What are legal rights?
Legal rights are fixed shares of a person's estate that certain close relatives can claim when that person dies. They apply whether or not there is a will. If there is a will, the relative can choose to take legal rights instead of what the will leaves them. If there is no will, legal rights are worked out as part of the rules of intestacy.
There are two types. The rights of children are called legitim. The rights of a surviving husband, wife or civil partner are traditionally called jus relicti or jus relictae. Both are set out in the Succession (Scotland) Act 1964 and the older common law.
Who can claim legal rights?
- Children of any age, including adult children, adopted children and children born outside marriage.
- Grandchildren and other descendants, if their parent has already died. They take the share their parent would have had.
- A surviving husband, wife or civil partner, including one who was separated but not yet divorced.
People who cannot claim legal rights include stepchildren who were never adopted, cohabiting partners, a former spouse after a divorce is final, parents, brothers and sisters. Any of them can be left something in a will, but none of them has a fixed entitlement.
How much are legal rights worth?
Legal rights are calculated on the net moveable estate. That means everything except land and buildings, after the debts, funeral costs and any inheritance tax have been paid. Moveable estate includes bank and building society accounts, cash, shares and investments, cars, furniture, jewellery and personal belongings.
| Who survives | Children, shared equally | Spouse or civil partner |
|---|---|---|
| Spouse or civil partner and children | One third of the net moveable estate | One third of the net moveable estate |
| Children, no spouse or civil partner | One half of the net moveable estate | Not applicable |
| Spouse or civil partner, no children | Not applicable | One half of the net moveable estate |
The children's share is divided equally among all the children who claim. It is a share of a fund, not a separate amount for each child, so the more children there are, the smaller each child's portion.
A worked example
A father leaves everything to his second wife
A man dies leaving a house worth £220,000 and savings and investments worth £90,000, after debts and funeral costs. His will leaves everything to his second wife. He also has two adult children from his first marriage. The house is heritable, so it is not part of the calculation. The children's legal rights are one third of the £90,000 moveable estate, which is £30,000, shared between them. Each child can claim £15,000, and his wife receives the house and the remaining £60,000.
These figures are simplified and ignore tax and interest, but they show why legal rights can make a real difference to how an estate is divided.
Why the family home is not included
Because legal rights only apply to moveable estate, a house, a flat, a farm or any other land cannot be claimed through legal rights. This is the main limit on the protection they give. A parent whose estate is mostly the family home can leave the home to one person, and the other children's legal rights will only bite on whatever money and belongings are left. Our guide to what a husband, wife or civil partner inherits shows how this works for a surviving spouse.
The Scottish Parliament's research service has noted that this restriction limits legal rights in practice, because they exclude what is many people's main asset. The Scottish Law Commission proposed changing this in 2009, but successive consultations found no agreement, and the rule remains in place today.
Choosing between the will and legal rights
If a child or a spouse is left something in the will, they cannot have both that legacy and their legal rights. They have to choose one or the other. The choice is sometimes called election, and once it is made it cannot usually be changed.
- If the legacy is worth more than the legal rights share, it usually makes sense to accept the will.
- If the legacy is small, or there is none, claiming legal rights may produce more.
- Claiming legal rights normally means giving up everything left to you in the will, not just part of it.
Some wills say expressly what should happen if a beneficiary claims legal rights, and a claim can change how the rest of the estate is shared between the other beneficiaries. Anyone thinking about claiming should get independent advice before deciding. If you believe the will itself is invalid, our guide on contesting a will in Scotland explains the grounds.
Lifetime gifts and collation
Where more than one child claims legitim, a child who received a large advance from the parent during their lifetime, for example money to buy a house or start a business, may have to bring that advance into account when the children's share is divided. This is known as collation. It keeps the division fair between the children who claim, and it does not apply to ordinary gifts or the cost of bringing a child up. Our guide to gifts before death explains how lifetime gifts affect legal rights, tax and care fees.
How long do you have to claim legal rights?
Most claims in Scotland must be made within five years. Legal rights are an exception. The Prescription and Limitation (Scotland) Act 1973 excludes claims to legitim and to a spouse's legal rights from the five-year period, so the right to claim lasts for 20 years from the date of death.
Other claims against an estate have much shorter limits, as our guide on time limits for claims against an estate sets out. That does not mean a legal rights claimant should wait. Executors normally need to know who is claiming before they can pay out the rest of the estate, and delay can cause difficulty for everyone.
What executors need to do about legal rights
An executor is responsible for making sure that everyone entitled to legal rights is told about them and has the chance to decide. If an executor pays out the estate without dealing with legal rights, they can be personally liable to a child or spouse who later claims.
- Identify everyone who is entitled, including grandchildren whose parent has died.
- Value the moveable estate and work out what each person's legal rights would be worth.
- Tell each person in writing what they are entitled to, and what they would give up under the will if they claim.
- Get a written decision. Someone who claims signs a discharge when they are paid. Someone who accepts the will signs a renunciation of their legal rights.
If a child is under 16, they cannot make the choice for themselves, and the executor should take advice on how to protect their position.
Can you avoid legal rights?
Some people want to leave more to one family member than legal rights would allow. The law does not stop you from arranging your affairs during your lifetime, and there are lawful ways to reduce the moveable estate that legal rights apply to, such as:
- giving money away during your lifetime;
- holding more of your wealth in property, which is heritable;
- nominating who receives pension death benefits, or writing life policies in trust, so they sit outside the estate.
Each of these has tax and practical consequences, and a gift cannot be taken back. It is also possible for a child or spouse to agree to give up their legal rights, either during your lifetime or after your death. After a death, beneficiaries can also rearrange what they receive with a deed of variation. If you want to limit what someone can claim, take advice when you make your will, not afterwards.
Legal rights and making a will
Legal rights are one of the main reasons that a Scottish will needs to be drafted with Scots law in mind. A will that looks sensible on paper can produce a very different result if a child claims legal rights. Our private client solicitors can work out what legal rights would be worth for your family and help you plan around them.
If you are an executor, or you think you may be entitled to legal rights from an estate, our executry solicitors in Glasgow, Hamilton, East Kilbride and Dumfries can explain where you stand. You can also read what happens when someone dies without a will in Scotland.
Frequently asked questions
Can I leave my house to one child and nothing to the others?
Yes, in most cases. Legal rights only apply to the moveable estate, such as money, investments and belongings, not to land and buildings. You can leave your house to whoever you like. The children who are left out could still claim legal rights from the rest of the estate, so it is worth taking advice on how the figures work for your family.
Do adult children have legal rights in Scotland?
Yes. Legal rights are not limited to young or dependent children. A child of any age can claim, including a child who has not been in touch with the parent for many years.
Do stepchildren have legal rights?
No. Legal rights belong to a person's own children, including adopted children and children born outside marriage, and to the descendants of a child who has died. Stepchildren who were never adopted have no legal rights, although they can of course be left something in a will.
How long does someone have to claim legal rights?
Claims to legal rights are not covered by the usual five-year prescription period. Instead, the right lasts for 20 years from the date of death. In practice, executors should settle legal rights before paying out the rest of the estate, so it is best to decide early.
Can a cohabitant claim legal rights?
No. Legal rights are only for a spouse, a civil partner and children. A cohabiting partner can ask the sheriff court for a share of an estate where there is no will, but the claim must be made within six months of the death, so they should get advice quickly.
Need help with an estate?
Our executry solicitors can take the whole process off your hands, or answer a single question. Your first appointment is free.
This guide is general information about Scots law, correct at the date shown. It is not legal advice for your circumstances.
