Intestacy in Scotland

Scotland does not follow the English model of a single statutory legacy off the top. Instead, an intestate estate is worked through in three stages, in order: prior rights, then legal rights, then the free estate. The governing statute is the Succession (Scotland) Act 1964. The whole scheme turns on the distinction between heritable property (land and buildings) and moveable property (everything else - money, investments, vehicles, and so on), so keep that split in mind throughout. This page is part of the wider Intestacy - Dying Without a Will overview; contrast the different mechanics in Intestacy in England & Wales and Intestacy in Northern Ireland.

The three stages, in order#

Stage	What it is	Applies to
1. Prior rights	The surviving spouse or civil partner's first claims: the dwelling house, its furnishings, and a cash sum, each capped.	Spouse / civil partner only
2. Legal rights	Fixed fractions of the net moveable estate that cannot be defeated: jus relictae/relicti for the spouse and legitim for the children.	Spouse / civil partner and children
3. Free estate	Whatever is left, distributed down a statutory order of relatives.	The order in section 2 of the 1964 Act

Each stage is satisfied before the next begins. Prior rights can, and often do, exhaust a modest estate entirely, so that nothing reaches the later stages.

Stage 1 - Prior rights#

Prior rights belong to a surviving spouse or civil partner only. There are three, each capped by a limit set by statutory instrument. The figures below apply to deaths on or after 1 February 2012 and remain current; confirm before relying on them.

• The dwelling house. The survivor takes the deceased's interest in the house they were ordinarily resident in, up to a value of £473,000. If the house is worth more than the cap, the survivor takes a cash sum equal to the cap instead (or the house plus a payment in, depending on the circumstances).
• Furniture and plenishings. The survivor takes the furniture and contents of that house, up to £29,000.
• A cash sum. The survivor takes a cash right of £50,000 where the deceased left issue, or £89,000 where there is no issue. This sum is drawn from the rest of the estate, heritable and moveable, rateably.

A "dwelling house" prior right is available even where the home was heritable - this is the mechanism that keeps the family home with the survivor, and it is why so many Scottish intestacies never reach legal rights at all.

Stage 2 - Legal rights#

Once prior rights are met, legal rights attach to the net moveable estate - the moveable property after debts, and after the moveable element of any prior rights already taken. Legal rights are indefeasible: they cannot be excluded, and (unlike in England & Wales) they exist against a will too, so a person cannot be wholly disinherited from the moveable estate.

There are two legal rights, and the fractions depend on who survives:

• The spouse or civil partner (jus relictae / jus relicti) takes one third of the net moveable estate where there is issue, or one half where there is no issue.
• The children (legitim, the "bairns' part") take, between them, one third of the net moveable estate where there is a surviving spouse or civil partner, or one half where there is not. The children divide their share equally, with the issue of a predeceasing child taking that child's share.

Where both a spouse and issue survive, the two legal rights take one third each, and the remaining third of the net moveable estate (the "dead's part") falls into the free estate.

Stage 3 - The free estate#

Anything left after prior rights and legal rights - all the heritable estate not taken as a prior right, plus the dead's part of the moveables - is the free estate. It passes down the order in section 2 of the 1964 Act:

1. Children (issue), equally, with issue of a predeceasing child taking per stirpes; failing which -
2. Parents and siblings together: if both survive, parents take one half and siblings share the other half; if only one group survives, it takes the whole; failing which -
3. The surviving spouse or civil partner (takes the whole free estate); failing which -
4. Uncles and aunts (and their issue); failing which -
5. Grandparents; then remoter collaterals and ancestors; failing everyone -
6. The Crown, as ultimus haeres.

Note the striking feature at step 3: in the free estate order, the surviving spouse ranks after the deceased's parents and siblings. In practice prior rights usually give the survivor the home and a substantial cash sum first, so this rarely leaves a spouse with nothing - but on a large estate with surviving parents or siblings, a portion of the free estate can pass to them ahead of the spouse.

Cohabitants inherit nothing automatically#

As in the rest of the UK, a cohabitant has no automatic entitlement on a Scottish intestacy. Scotland does, however, give a cohabitant a limited statutory route: an application to the court under section 29 of the Family Law (Scotland) Act 2006 for a discretionary payment out of the estate. The catch is a very short deadline - the application must be made within six months of death - and the award is capped by reference to what a spouse would have received. It is no substitute for a will (see The Will (Single & Mirror)).

Worked example#

Ailsa dies intestate, domiciled in Scotland, survived by her husband Ben and their two children. Her estate: the family home worth £400,000 (heritable), savings and investments of £350,000, and household furnishings worth £29,000. There are no debts.

Stage 1 - prior rights (to Ben):

• Dwelling house: worth £400,000, within the £473,000 cap, so Ben takes the house (£400,000).
• Furnishings: £29,000, within the cap.
• Cash sum: issue survive, so £50,000, taken from the savings.

Stage 2 - legal rights on the net moveable estate remaining, which is £350,000 − £50,000 = £300,000:

• Ben's jus relicti: one third (issue survive) = £100,000.
• The children's legitim: one third between them = £100,000, i.e. £50,000 each.
• The dead's part - the remaining third, £100,000 - falls into the free estate.

Stage 3 - free estate: the dead's part of £100,000 passes to the children as issue: £50,000 each.

Result: Ben receives £400,000 + £29,000 + £50,000 + £100,000 = £579,000. Each child receives £50,000 (legitim) + £50,000 (free estate) = £100,000.

Had the estate been more modest - say a house of £280,000 and £40,000 of moveables - the prior rights to the house, furnishings, and cash would have absorbed the whole estate, and neither the children's legitim nor the free estate would have produced anything.

Reform history#

Scottish succession law has been under review for years. The Scottish Law Commission recommended wholesale reform of intestacy (its 2009 Report on Succession), and the Succession (Scotland) Act 2016 made a first set of technical changes. The Trusts and Succession (Scotland) Act 2024 modernised trust law and parts of the succession framework. Wider reform of the prior-rights-and-legal-rights structure has been consulted on but not enacted, so the 1964 Act model described here remains the law. Because the position may change and the cash limits are revised by order, always check the current rules.

Administration#

A Scottish intestate estate is administered by an executor-dative, appointed by the sheriff court, who obtains confirmation (Scotland's equivalent of a grant) before ingathering and distributing the estate. See Executors, Administrators & the Grant of Probate for who may be appointed and their duties, and Administering an Estate, Step by Step for the process.

Making a will instead#

A will made through The Will (Single & Mirror) lets a testator direct the free estate as they choose, provide for a cohabitant, and plan around legal rights - which, being indefeasible over the moveable estate, need to be anticipated rather than ignored. Intestacy offers none of that flexibility.

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This page is general information about the law of Scotland, not legal advice. Prior-rights limits and other figures are set by statutory instrument and change over time; confirm the current position before acting.