Dying Without a Will in Scotland: Prior Rights Explained

If you die without a will in Scotland, your estate is not divided the way it would be in England. Scots law does not begin with a single lump sum for your spouse. It works through three separate stages, in a fixed order — prior rights, then legal rights, then the free estate — and in a modest estate the first stage can use up almost everything before the children reach the front of the queue.

This matters because most of what you will read online about dying without a will describes the English rules, with an English statutory legacy figure, and none of it applies north of the border. The mechanisms are different, the amounts are different, and the outcome for a spouse and children can be very different. If you are in Scotland, the English numbers will mislead you at every step.

Here is the order Scots law actually follows once debts and funeral expenses have been paid, and what a surviving spouse or civil partner and the children each take at every stage.

The short answer: three stages, in order

An intestate Scottish estate is settled in a strict sequence. First, debts, funeral costs and the expenses of administering the estate are paid. What is left is then run through three stages, each fully satisfied before the next begins: prior rights, then legal rights, then the free estate. The order is not a formality — because each stage is met in full before the next starts, the people at the back can find there is nothing left by the time their turn arrives.

Prior rights and legal rights are both fixed entitlements rather than shares a court decides. Only the free estate, at the very end, is distributed down the family tree in the way most people picture inheritance working. We look at the way debts are cleared ahead of everything else in our companion piece on how debts are paid before prior rights in Scotland; here the focus is on how the estate itself is divided once they are.

Stage one: prior rights

Prior rights belong to a surviving spouse or civil partner, and to no one else. They apply only where there is no will, and they are satisfied first — ahead of the children and ahead of everything else in the estate. There are three of them.

• The home. The survivor has a right to the deceased's interest in the house they lived in, provided its value does not exceed £473,000. If the house is worth more than that, the survivor takes a cash sum equal to the limit instead of the property itself.
• Furniture and plenishings. The survivor can take the furniture and contents of that home up to a value of £29,000.
• A cash sum. The survivor also receives a fixed cash sum: £50,000 if the deceased left children or other descendants, or £89,000 if they did not.

Source: The Prior Rights of Surviving Spouse and Civil Partner (Scotland) Order 2011, in force for deaths on or after 1 February 2012.

These are ceilings, not guaranteed amounts — the survivor cannot take more than the estate actually holds. But in a great many Scottish estates the home and savings sit comfortably within these limits, which means the surviving spouse's prior rights can account for the whole estate before the next stage is even reached. We look more closely at what a surviving spouse takes before anyone else, and at prior rights and who keeps the family home, in two companion pieces.

Stage two: legal rights

Legal rights come next, and they have two features that catch people out. First, they are calculated only on the moveable estate — money, savings, investments, vehicles and possessions — and not on heritable property, meaning land and buildings. Second, unlike anything in English law, they cannot be defeated by a will.

After debts and prior rights, the net moveable estate is divided like this. A surviving spouse or civil partner is entitled to one-third of it if the deceased left children, or one-half if there were no children. The children are together entitled to one-third if a spouse or civil partner survives, or one-half if not, and they share that portion between them equally.

Source: Succession (Scotland) Act 1964, which sets out legal rights and the order in which an intestate estate is distributed.

Because a will cannot remove legal rights, a child left out of a Scottish will is not without remedy: they can claim their legal rights from the moveable estate instead of taking what the will gives them. That is a fundamental difference from England and Wales, where there is no equivalent fixed entitlement for an adult child, and it is why disinheriting a child is far harder to do in Scotland.

Legal rights are not paid out automatically, though. They have to be claimed, and a claim comes with a choice: a person cannot both accept a legacy left to them under a will and also claim their legal rights on top of it. They must elect between the two. For an adult child weighing a modest legacy in a will against a legal-rights share of a large moveable estate, that election can be a genuine decision rather than a formality, and it is one where taking advice usually pays for itself.

Stage three: the free estate

Whatever is left after debts, prior rights and legal rights is the free estate, and it is distributed down a statutory list that puts the deceased's children and their descendants first. Only if there are no descendants does the estate move on to parents, then brothers and sisters, and then more distant relatives.

The consequence is easy to miss. Where there are children, it is the children — not the surviving spouse — who inherit the free estate at this final stage. The spouse's share of an intestate estate is, in effect, the prior rights plus their legal rights, and no more. In a large estate that leaves a substantial free estate for the children to inherit. In a small one, as the next section shows, there may be nothing left to reach them.

What this looks like in a real estate

The three stages sound balanced until you apply them to an ordinary Scottish estate, where the largest asset is almost always the family home. Work through the order and you can see how the children end up at the back.

Take a surviving spouse who lived in a home the deceased owned. If that home is worth less than the prior-rights limit, it passes to the survivor in full at the very first stage, before anything is measured out to anyone else. The furniture goes to them too, up to its own limit. Then the cash sum is taken from what remains. In a modest estate — a house, some savings, a car — those three prior rights alone can consume everything there is.

Only after that do legal rights apply, and they come out of the moveable estate, which by this point may be almost gone. Whatever is left for the free estate, where the children finally rank first, can be very little or nothing at all. The children have not been disinherited by anyone's choice; the order of the rules has simply reached them last, once the surviving spouse's entitlements were satisfied in full.

This is the single most important thing to understand about Scottish intestacy, and it is the opposite of what most people assume. They picture an even split between the widow or widower and the children. In a smaller estate the reality is that the surviving spouse can take almost all of it, and the children take what is left, if anything.

Cohabitants, and why a will still matters

None of the above helps a partner you were not married to. A cohabitant has no prior rights and no legal rights. Since 2006 a surviving cohabitant has been able to apply to a court for a discretionary payment from an intestate estate, but they must apply within a strict time limit, the award is at the court's discretion rather than a fixed entitlement, and it cannot exceed what a spouse would have received. It is a safety net with holes in it, not a substitute for being properly provided for.

Source: Family Law (Scotland) Act 2006, section 29, under which a surviving cohabitant may apply to the court within six months of the death.

A will changes the picture at every stage. It lets you provide for a cohabiting partner who would otherwise get nothing automatically. It lets you decide who takes the heritable property, which legal rights never touch. And while it cannot remove your children's legal rights, it lets you direct the rest deliberately, instead of leaving the three-stage machinery to grind through your family in an order you never chose. One thing sits outside all three stages entirely: a life policy written in trust does not form part of your estate, so it is not consumed by prior rights and reaches the people you name directly. If that would help your family, you can get life insurance quotes and have an FCA-authorised broker set it up in trust. If your circumstances are complex — a second family, or a disabled child who will need providing for over a long life, which we look at in funding decades of care for a child who may outlive you — that control matters more, not less.

How Scotland differs from England, Wales and Northern Ireland

The gap between the systems is wide enough that applying the wrong one gives a wholly wrong answer. In England and Wales an intestate estate starts with a single statutory legacy to the surviving spouse, currently set at £322,000, followed by a straightforward division of the remainder between the spouse and the children. There are no prior rights, no separate legal rights, and no moveable-versus-heritable distinction.

Source: The Administration of Estates Act 1925 (Fixed Net Sum) Order 2023, which sets the statutory legacy in England and Wales at £322,000 for deaths on or after 26 July 2023.

If you are dealing with an estate under the English rules instead, our guide to a parent who died without a will and a house in their sole name walks through who inherits and who can sell. Northern Ireland has its own intestacy rules again, closer in shape to England and Wales than to Scotland but separate in detail. The practical point holds across all of them: the person left to administer the estate has to work to the right rulebook from the start, and that same person is often the one deciding who raises any children — a role worth thinking about separately from who controls the money, which we do in who administers the estate and whether they should also raise the children.

Frequently asked questions

What are prior rights in Scotland?

They are the surviving spouse's or civil partner's first claim on an intestate estate: an interest in the dwelling house they lived in up to a set value, the furniture and plenishings up to a further limit, and a cash sum. Prior rights are satisfied before legal rights and before anything passes to the children.

Do children still inherit if prior rights use up the estate?

Often very little. Prior rights are satisfied first, legal rights are then taken from the moveable estate, and only the free estate is left to distribute among the children. In a modest Scottish estate the surviving spouse can absorb almost all of it, leaving the children with a small share or nothing at all.

What are legal rights, and can a will override them?

Legal rights entitle a spouse and children to a share of the moveable estate, meaning cash, investments and possessions but not land or buildings. Unlike in England, a Scottish will cannot remove them: a disinherited child can claim their legal rights instead of taking whatever the will gives them.