Legal Rights in Scotland: Children Can Claim Against a Will

If your father's Scottish will leaves you nothing, you are not necessarily left with nothing. In Scotland, unlike England and Wales, a child cannot be disinherited completely. You have what Scots law calls legal rights, and they give you a fixed, automatic share of part of the estate that no will can override. The question is not usually whether you can claim — it is how much, and against which part of the estate.

The catch, and it is a real one, is that legal rights only bite on the moveable estate: money, savings, investments, vehicles and possessions. They do not touch heritable property, which means land and buildings. So if your father's main asset was the house, and he left it to someone else, legal rights will not get you a share of it. They will get you a share of everything else he owned that was not bricks and mortar.

This page explains what legal rights are, how to work out the share you can claim, and the one decision you cannot avoid: because you have to choose between taking whatever the will did leave you and claiming your legal rights instead. You cannot have both, and choosing wrongly can cost you.

The short answer: you cannot be cut out entirely

Testamentary freedom — the idea that you can leave your money to whomever you like — is close to absolute in England and Wales. In Scotland it is not. Scots law has protected the immediate family against disinheritance for centuries through legal rights, and those rights sit above the will. A testator can try to leave a child nothing, and the words in the will are valid as far as they go, but they cannot actually stop the child claiming their legal share of the moveable estate.

What legal rights cannot do is give you a share of the house. That is the hard edge that disappoints people, because for most families the house is the largest thing there is. If the whole point of the will was to leave the family home to a second spouse, or to one sibling, legal rights will not unpick that. They operate on the rest of the estate, and how large a prize that is depends entirely on how much of your father's wealth was moveable rather than heritable.

What legal rights are, and who has them

Legal rights are automatic entitlements that arise on death regardless of what any will says. There are two kinds. A surviving spouse or civil partner has a right known historically as jus relictae or jus relicti. Children have a right known as legitim, sometimes called the bairns' part. Both are claims to a share of the net moveable estate, and both exist whether the person died with a will or without one.

Grandchildren can step into the claim by representation where their own parent — the deceased's child — has already died, taking the share that parent would have taken. The people who do not get legal rights are cohabiting partners: living together, however long and however committed, does not create a legal rights claim in Scotland, though a surviving cohabitant may have a separate and quite different application to the court. Legal rights in the strict sense belong to spouses, civil partners and children.

These are the same rights that reshape so many Scottish estates involving second families, where a parent's plans for a new spouse collide with the children's automatic claims. We look at that specific tension in how your children can claim against your estate in Scotland.

Moveable estate versus the house: the split that decides everything

Everything turns on the line between moveable and heritable property, so it is worth being precise. Heritable property is land and anything attached to it — most importantly the house or flat, but also other buildings and interests in land. Moveable property is essentially everything else: bank and building society balances, ISAs, shares and other investments, cars, jewellery, furniture and personal effects, and money owed to the deceased.

Legal rights are calculated only on the moveable estate, and only after the moveable debts and a proportionate share of the funeral expenses have been taken off. So the sequence is: identify what was moveable, deduct the debts and funeral costs attributable to it, and you are left with the net moveable estate. That net figure is the pot your legal rights share comes out of. A large house and a small bank balance will produce a small claim; a big investment portfolio and a rented home will produce a large one.

This is also why the wording and structure of a Scottish will matters so much, and why marrying does not quietly rewrite an existing one the way it does in England — a point we cover in why marrying in Scotland leaves your will standing but lets legal rights bite.

How much you can claim

The share depends on who else has survived. The net moveable estate is divided into parts, and the fractions are fixed by law rather than by anything the will says:

• Where a spouse or civil partner survives and there are children, the children collectively take one third of the net moveable estate, the spouse or civil partner takes one third, and the remaining third — the "dead's part" — passes according to the will.
• Where there are children but no surviving spouse or civil partner, the children collectively take one half of the net moveable estate, and the other half is the dead's part passing under the will.
• Where there is a spouse or civil partner but no children, the spouse or civil partner takes one half, and the other half is the dead's part.

The children's share is divided equally between them. So if you are one of three children and there is no surviving spouse, the children's half of the net moveable estate is split three ways, giving you a sixth of that net moveable figure. Note what this means in the situation you came here with: even a will leaving you "nothing" cannot stop you claiming your slice of that children's share.

Source: Succession (Scotland) Act 1964 and mygov.scot guidance on inheritance and legal rights in Scotland.

Making the claim: the choice you face and the time limit

Legal rights are a claim, not an automatic payment, so you have to make them. Where an executor knows a person is entitled, they should tell them, but you may still need to state that you are claiming and provide the information to value the moveable estate. The claim is against the executor administering the estate, and the calculation runs off the inventory of moveable assets and debts.

The decision you cannot dodge is the choice between the will and your legal rights. Scots law does not let you both accept a legacy the will leaves you and also claim legal rights — you must elect one or the other. If the will leaves you a decent legacy, taking it may be worth more than your legal rights share; if it leaves you little or nothing, claiming legal rights is the whole point. Value both before you decide, because the choice, once acted on, is difficult to reverse. Take advice from a Scottish solicitor, particularly where the numbers are close or the estate is complex.

Time is on your side more than in most areas of estate law: a legal rights claim can be pursued for a long period after the death under Scotland's rules on prescription, running to many years. That does not make delay wise — valuations get harder and relationships more strained as time passes — but it does mean a claim is rarely lost simply because a family took a few months to work out where they stood.

Providing for a child outside legal rights

If you are reading this from the other side — as a parent in Scotland trying to control who gets what — the lesson of legal rights is that you cannot fully control the moveable estate, but you can change how much of your wealth is moveable estate in the first place. Money held outside the estate is outside the legal rights calculation altogether.

The cleanest example is a life insurance policy written in trust. Its proceeds never form part of your estate, moveable or heritable, so they are not counted in the legal rights sum and are not exposed to a claim you did not intend. That lets a parent provide a defined amount for a particular child, or protect a second spouse living in the house, without a legal rights claim quietly rebalancing the whole plan. It is also money that reaches the beneficiary directly, without waiting on confirmation. We explain the tax side in why a life payout can be pulled into inheritance tax and how a trust prevents it, and you can get life insurance quotes to have an FCA-authorised broker arrange cover held in trust that sits outside the estate.

Inheritance tax, unlike legal rights, is a UK-wide matter and applies to a Scottish estate in the same way as an English one, with the same allowances and the same deadlines — see why an estate with no children gets no extra property allowance and, if the bill runs late, what HMRC does in month seven when the tax is not paid.

How England, Wales and Northern Ireland differ

None of this applies south of the border in the same way. In England, Wales and Northern Ireland there is no equivalent of legal rights: a will can, in principle, leave a child nothing. The protection there is different in kind — a disappointed family member or dependant can apply to a court for reasonable financial provision under family provision legislation, but that is a discretionary claim decided case by case, not a fixed automatic share. A Scottish child's legal rights are calculated from a formula; an English claimant asks a judge.

That difference matters most in cross-border estates, where a person lived in one nation and owned property in another, and it is easy to apply the wrong country's rules. If your father's affairs straddled the border, take advice early on which law governs which asset. For the wider context of settling an estate, including the Scottish route through confirmation, see our guide to probate, the estate and inheritance tax.

Frequently asked questions

Can you be disinherited in Scotland?

Not completely. Children and a surviving spouse or civil partner have legal rights over the moveable estate, and a will cannot defeat them. Heritable property such as land and houses is not covered by legal rights, so a will can leave the family home to somebody else entirely while the moveable estate remains subject to the family's automatic claims.

How much can a child claim under legal rights?

Children collectively take one third of the net moveable estate where a spouse or civil partner also survives, and one half where there is none, shared equally between them. Moveable estate means cash, investments and possessions, calculated after debts and funeral costs, rather than land and buildings, which fall outside legal rights.

Can I take a gift in the will and claim legal rights too?

No. You must choose between accepting what the will leaves you and claiming your legal rights; you cannot have both. Work out the value of each before deciding, and take advice from a Scottish solicitor, because the calculation involves identifying the moveable estate and deducting debts first, and the choice is hard to reverse once made.