Dying Without a Will in Scotland: Intestacy Rules

When someone dies without a will in Scotland, the estate is not divided under the same rules as England and Wales. A surviving spouse or civil partner takes prior rights first, then legal rights apply, before whatever remains passes under the ordinary order of succession.

How Intestacy Works in Scotland: Three Stages, in Order

When a person domiciled in Scotland dies without a valid will, or leaves a will that does not deal with the whole estate, the Succession (Scotland) Act 1964 sets out how the estate is distributed. Unlike England and Wales, Scotland applies the rules in three distinct stages, in a fixed order: first prior rights, then legal rights, then the free estate. A surviving spouse or civil partner benefits from the first two stages; children and other relatives share whatever is left once those rights have been satisfied. Each stage draws on a different part of the estate, and the figures involved are periodically reviewed, so always check the current amounts before relying on them.

Stage 1: Prior Rights (What a Spouse or Civil Partner Gets First)

Prior rights belong only to a surviving spouse or civil partner, and they are satisfied before anything else is divided. They cover three things: the dwellinghouse the survivor was ordinarily resident in at the date of death, up to a value of £473,000, or its full value if worth less; the furniture and contents of that house, up to £29,000; and a cash sum of £50,000 if the deceased also left surviving children or other descendants, rising to £89,000 if there are none. If the whole estate is smaller than these figures, the surviving spouse or civil partner simply takes everything, and nothing passes to legal rights or the free estate. Prior rights apply automatically on intestacy and do not depend on how long the couple was married. How the house was owned does matter, though: the housing right covers only the deceased's interest in the home where that interest forms part of the intestate estate, so a share that passes to a co-owner outside the estate is not covered. Where the home is part of a larger tenancy or of premises used for the deceased's business, the survivor may receive its value instead of the house itself.

Stage 2: Legal Rights (Forced Heirship Over the Moveable Estate)

Legal rights apply after prior rights, and only to the net moveable estate, meaning money, shares, vehicles and personal possessions, but not land or buildings, which fall outside legal rights entirely. A surviving spouse or civil partner is entitled to one-third of the net moveable estate if the deceased also left surviving children, or one-half if there are none. The children, taken together as a class, are entitled to one-third of the net moveable estate if there is a surviving spouse or civil partner, or one-half if there is none. Legal rights are the one part of Scottish succession law that a will cannot override: a spouse, civil partner or child who is left out of a will, or left less than their legal rights share, can still choose to claim legal rights instead of taking under the will.

Stage 3: The Free Estate (What's Left)

Once prior rights and legal rights have been satisfied, whatever remains of the estate is called the free estate, and it passes under the statutory order of succession in the Succession (Scotland) Act 1964. For deaths on or after 30 April 2024, that order was reformed by section 77 of the Trusts and Succession (Scotland) Act 2024. The free estate now passes first to the deceased's children (and their own descendants if a child has died first). If there are no children or other descendants, the surviving spouse or civil partner takes the whole of the free estate, ranking ahead of the deceased's parents and siblings. Only if there is no surviving spouse or civil partner either does the free estate pass to parents and siblings, and on through more distant relatives. This is a real change: for deaths before 30 April 2024, a childless surviving spouse could see the deceased's parents or siblings inherit the free estate ahead of them, which no longer happens. If no qualifying relative can be found at all, the estate passes to the Crown as ultimus haeres.

Prior Rights and Legal Rights at a Glance

Cohabitants: No Automatic Right to Inherit

Unmarried cohabiting partners have no automatic right to inherit under Scottish intestacy, however long the relationship lasted or whether the couple had children together; prior rights and legal rights belong only to a surviving spouse or civil partner. A surviving cohabitant's only route is to apply to the Sheriff Court or Court of Session under section 29 of the Family Law (Scotland) Act 2006 for a discretionary award from the estate, generally within 6 months of the death. The court weighs factors such as the length and nature of the relationship and any economic disadvantage the survivor suffered, but there is no guarantee of an award, and by law it cannot exceed what the cohabitant would have received had they been married to, or in civil partnership with, the deceased. A cohabitant who wants certainty should make a will rather than rely on a court application after the event.

How This Differs from England and Wales

Scotland's intestacy rules bear little resemblance to the rules in England and Wales. England and Wales use a single statutory legacy, currently £322,000, paid to a surviving spouse or civil partner alongside personal chattels and half of any remaining residue, with no forced-heirship protection for children or anyone else; see our guide to intestacy rules in England and Wales for the full breakdown. Scotland instead layers prior rights, then legal rights, over the estate, and legal rights cannot be defeated by a will at all, a protection England and Wales simply does not have. Anyone dealing with an estate connected to more than one UK nation should not assume the England and Wales figures, or the England and Wales system, apply north of the border.

This article is general information about intestacy in Scotland, not legal advice, and the prior rights and legal rights figures are reviewed from time to time. If you are dealing with an estate, or think you may be entitled to legal rights or a cohabitant's claim, take advice from a Scottish solicitor or contact Citizens Advice Scotland about your specific circumstances.

For the wider picture of dealing with an estate in Scotland, see our guides to Confirmation in Scotland and contesting a will, or intestacy rules in England and Wales for comparison. Return to the UK wills and probate hub and the wider guide to United Kingdom law.

Frequently Asked Questions

What happens if you die without a will in Scotland?

Your estate is distributed under the Succession (Scotland) Act 1964. A surviving spouse or civil partner takes prior rights first (the home, its contents and a cash sum), then legal rights apply over the moveable estate, and whatever is left, the free estate, passes under the statutory order of succession starting with children.

What are prior rights in Scotland?

Prior rights are the first call a surviving spouse or civil partner has on an intestate estate: the dwellinghouse they lived in up to £473,000, furniture and contents up to £29,000, and a cash sum of £50,000 if the deceased left children or £89,000 if not. If the estate is smaller than these figures, the survivor takes everything.

What are legal rights in Scotland?

Legal rights are a forced-heirship entitlement to a share of the deceased's net moveable estate, meaning money, shares and possessions, not land or buildings. A surviving spouse or civil partner gets one-third if there are children, or one-half if not; children share one-third if there is a spouse or civil partner, or one-half if not.

Can a will get around legal rights in Scotland?

No. Legal rights cannot be defeated by a will. A spouse, civil partner or child who is left out of a will, or left less than their legal rights share, can still choose to claim legal rights over the deceased's moveable estate instead of taking under the will.

What is the free estate?

The free estate is whatever remains of an intestate estate after prior rights and legal rights have been paid. For deaths on or after 30 April 2024, it passes first to the deceased's children; if there are no children, the surviving spouse or civil partner takes the whole free estate ahead of parents and siblings, under a reform made by the Trusts and Succession (Scotland) Act 2024. Only if there is no surviving spouse or civil partner does it pass to parents, siblings and more distant relatives.

Do unmarried partners inherit anything if there is no will in Scotland?

Not automatically. Cohabitants have no automatic right to inherit under Scottish intestacy. A surviving cohabitant can apply to the court for a discretionary award under section 29 of the Family Law (Scotland) Act 2006, generally within 6 months of the death, but there is no guarantee of an award.

Is intestacy in Scotland the same as in England and Wales?

No. England and Wales use a single statutory legacy, currently £322,000, with no forced heirship. Scotland uses prior rights and legal rights instead, and legal rights cannot be defeated by a will, a protection that does not exist in England and Wales.