If you die without a valid will in Scotland, the law decides who gets what. The rules are fixed, and they don't bend to what you would have wanted.
How the rules work
Debts and funeral costs come out first. Then a surviving spouse or civil partner can claim prior rights. Then a spouse and children can claim legal rights. Whatever is left, called the free estate, goes to relatives in a set order.
These rules apply to deaths on or after 30 April 2024. Earlier deaths follow the older order.
Prior rights
A surviving spouse or civil partner can claim these before anyone else, whether or not there are children. The right to the home and its contents applies only where the survivor was living in the property when the other person died.
| Right | Amount |
|---|---|
| The family home | Up to £473,000 |
| Furniture and household contents | Up to £29,000 |
| Cash | £50,000 if there are children, £89,000 if there are none |
Many families expect the children to share the house. With a surviving spouse, prior rights usually give the house to the spouse first, as long as it is worth less than the limit. The Scottish Government reviews these amounts from time to time, so check the current figures.
Legal rights
Legal rights are a separate claim on the moveable estate: cash, investments, vehicles and possessions, but not land or buildings. If a spouse and children both survive, each group gets one third. If only one group survives, it gets one half.
Legal rights apply with or without a will, which is why they matter so much when you plan. Our guide on disinheriting a child in Scotland covers them in detail.
The order of succession
What remains after prior rights and legal rights is the free estate. It passes in this order, and the first group that exists takes it all:
- Your children, with the children of any child who has died standing in for them.
- Your spouse or civil partner. Since 30 April 2024 they take the whole free estate where there are no children.
- Your parents and siblings, half to the parents and half to the siblings.
- Your aunts and uncles.
- Your grandparents, then more distant relatives.
- The Crown, if no relative can be found.
The 2024 change moved a spouse ahead of parents and siblings. It is part of the Trusts and Succession (Scotland) Act 2024.
Who gets nothing
Unmarried partners, stepchildren and friends have no automatic right to any of it. A cohabiting partner can ask the court for provision, within six months of the death. Our guide on unmarried partners and inheritance explains how that works and where it falls short.
What a will changes
A will lets you decide who gets the free estate, including the house. It can appoint a guardian for young children, choose your executor and set up trusts for people who need protection.
Prior rights apply only when there is no will, so a will replaces them with whatever you decide for your spouse. It can't remove legal rights. It does mean the result is yours, not the default.
Richard arranges wills through our specialist legal partners, usually at your kitchen table. Start with our Wills page.