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When someone dies without a will in Scotland, the estate is distributed through three layers: prior rights (spouse gets house up to £473,000, contents up to £29,000, cash up to £50,000/£89,000), legal rights (fractions of moveable estate), then free estate. Cohabiting partners inherit nothing automatically — they must apply to court within 12 months.
Dying without a will (intestate) in Scotland triggers a specific succession system under the Succession (Scotland) Act 1964. The system differs significantly from England's intestacy rules and is particularly complex for non-married couples.
Layer 1: Prior Rights. The first claim on the estate belongs to the surviving spouse or civil partner (not a cohabiting partner). Prior rights cover: - The family home: up to £473,000 (if the spouse lives there and the house is part of the estate) - Household contents: up to £29,000 - A financial provision: £50,000 if there are surviving children; £89,000 if no children
Prior rights take precedence over everything else, including children's claims.
Layer 2: Legal Rights (Legitim). After prior rights, children (including illegitimate and adopted children, but not stepchildren) have a right called "legitim" — a fixed share of the moveable estate (cash, investments, personal property — not land). If there is a surviving spouse, children get one-third of the net moveable estate after prior rights. If no spouse, they get one-half. Legitim cannot be defeated by a will — children can always claim it, even if left out of a will.
Layer 3: Free Estate. Whatever remains after prior rights and legal rights is distributed according to the order of succession: spouse, then children, then remoter relatives (parents, siblings, etc.) in a fixed statutory hierarchy.
Cohabitants: the critical gap. A cohabiting partner has no automatic right to inherit under Scottish intestacy. They must apply to the court (under Section 29 of the Family Law (Scotland) Act 2006) within 6 months of the date of death for a discretionary award. The court has broad discretion and may award nothing. This is a fundamental risk for unmarried couples who have not made wills.
The solution. A will overrides intestacy for the free estate (though not for legal rights, which children can always claim). A well-drafted will with appropriate nil-rate band trusts and guardian appointments is essential for anyone with a cohabiting partner, children, or significant assets.
Yes — through the concept of legitim, children (biological, adopted, and illegitimate children — not stepchildren) have an indefeasible right to a share of the moveable estate, regardless of what any will says. If a will leaves children nothing, they can elect to claim their legitim share instead. A parent cannot disinherit their children from legitim in Scotland.
The surviving cohabiting partner has no automatic right to inherit. They must apply to the Sheriff Court within 6 months of the date of death under Section 29 of the Family Law (Scotland) Act 2006. The court may award a portion of the estate, but it is entirely discretionary — the award could be nothing. This is a significant risk, and making wills is essential for cohabiting couples.
The surviving spouse first claims prior rights on the home (up to £473,000). If the home value exceeds this, the spouse gets £473,000 and the excess falls into the estate. After prior rights, the children claim legitim from the moveable estate. In most average Scottish estates, prior rights will exhaust the estate before children receive anything — meaning children may inherit nothing when there is a surviving spouse.