Scotland: Your Children Can Claim Against Your Estate

If you have remarried in Scotland and you have children from your first marriage, there is a rule you need to know before you decide who gets what: you cannot fully disinherit those children. Scotland gives children legal rights over a parent's estate that a will cannot take away. So the honest answer to "can my children claim against my will in Scotland" is yes — within limits, and whatever the will says, they keep a claim.

These legal rights, still sometimes called legitim, apply to your moveable estate — your money, savings, investments and possessions — but not to your house or land. That single distinction shapes everything that follows in a second marriage. Your new spouse and your first-family children both have a claim on the same pot of cash, and because the claim bites on moveable property and not on heritable property, the money can be drained while the house passes untouched to whoever you left it to.

This page explains how legal rights and prior rights work in a blended Scottish family, why they so often leave the cash exhausted and the home intact, and where life cover fills the gap the rules deliberately leave. The aim is to let you provide for a new spouse and for children from before, without one side quietly cancelling out the other.

The short answer: you cannot cut your children out entirely

Scots law protects a deceased person's children and surviving spouse from being disinherited, and it does so through fixed entitlements that override the terms of a will. This is very different from the position in England and Wales, where in principle you can leave your estate to anyone and a disappointed relative has to bring a court claim to argue they were not reasonably provided for. In Scotland the protection is built into the law of succession itself, and no clause in a will can remove it.

For children, that protection is legal rights, historically called legitim or the bairns' part. Every child of the deceased is entitled to a share of the moveable estate, and grandchildren can claim in place of a child who has died before the parent. A child left out of the will altogether can still claim their legal rights; a child left something in the will has a choice to make, which we come to below. What no one can do is write a will that leaves a child with no entitlement at all.

That is the reassuring part if you are the child, and the constraint if you are the parent trying to balance two families. Either way, it means a second-marriage estate plan in Scotland has to be built around legal rights rather than in defiance of them. The equivalent claim, and the mechanics of how a child actually makes it, are covered in more depth in our guide to how legal rights let children claim against a will in Scotland.

Legal rights: what legitim actually covers

Legal rights attach to the net moveable estate — the value of the deceased's moveable property after debts, funeral costs and the expenses of administering the estate are met. Moveable property is essentially everything that is not land or buildings: bank and savings balances, shares and investments, cars, jewellery, furniture and other personal possessions.

The size of the children's share depends on who else survives. If the deceased is survived by a spouse or civil partner, the children share one third of the net moveable estate between them, however many of them there are. If there is no surviving spouse or civil partner, the children share one half. The surviving spouse or civil partner has their own legal right over the moveable estate as well — again one third if there are children, one half if there are none — which sits alongside the children's share, not instead of it.

Two features of this matter for planning. First, legal rights are a right to a sum of money calculated from the moveable estate, not a right to specific items; the estate satisfies the claim in cash or its equivalent. Second, legal rights apply whether or not there is a will. They are not an intestacy rule. Even a carefully drafted will leaving everything to a new spouse cannot stop a first-marriage child from claiming their legitim out of the moveable estate.

Moveable versus heritable: why the house sits outside

The line between moveable and heritable property is the hinge the whole second-marriage problem turns on. Heritable property — the house, a flat, land, anything fixed — is entirely outside legal rights. A child has no legal right over the family home, no matter how large it looms in the estate.

Play that out in a typical blended family. Suppose most of your wealth is your home, and your moveable estate is modest — some savings, a car, personal effects. You leave the house to your new spouse and split the rest. Your first-marriage children's legal rights bite only on that modest moveable estate, so their protected entitlement is small, and the house passes to your spouse untouched. The children may feel, with some justice, that the law protected them on paper and gave them very little in practice.

Now flip it. Suppose you hold a lot of moveable wealth — a large investment portfolio, substantial savings — and a more modest home. Here the children's one-third or one-half claim over the moveable estate can be significant, and satisfying it may force investments to be sold, reducing what your surviving spouse is left with. The same rules produce opposite pressures depending on how your wealth is split between bricks and cash. Understanding which situation you are in is the first practical step, and it is why the Scottish position needs its own plan rather than an English one imported north. The wider set of second-marriage tensions, including the England and Wales intestacy figures that do not apply in Scotland, is set out in how the statutory legacy works in a second marriage.

Prior rights: what a surviving spouse takes first

There is a second, separate set of entitlements for a surviving spouse or civil partner: prior rights. Unlike legal rights, prior rights apply only where the deceased died wholly or partly intestate — without a will covering the relevant property. If there is a valid will dealing with everything, prior rights do not arise.

Where they do arise, prior rights come off the top of the estate before anything else is distributed, and they can be substantial. A surviving spouse or civil partner is entitled to the deceased's interest in the family home up to a statutory value limit, to the furniture and furnishings up to a further limit, and to a cash sum, with the cash sum set at a different level depending on whether the deceased also left children. The exact figures are fixed by regulations and are revised from time to time, so anyone relying on them should check the current amounts through the Scottish Government's guidance on wills and estates or a solicitor rather than assume.

The effect in a blended family without a will can be stark. Prior rights are generous enough that, for a modest estate, a surviving spouse can take the home and much of the cash before the children see anything, and only then do legal rights and the rest of the intestacy rules apply to what is left. A parent who dies intestate believing their first-marriage children will "obviously" get a fair share can be very wrong. The order these entitlements come in — prior rights first, then legal rights, then the free estate — is set out in the Succession (Scotland) Act 1964.

The second-marriage squeeze, in plain terms

Put the two sets of rules together and the blended-family squeeze becomes clear. You are trying to look after a new spouse, who may need the home and an income, and children from a first marriage, who you want to receive something real rather than a token. The law hands each side a different lever.

If you make no will, prior rights can hand the home and a large cash sum to your surviving spouse, and your first-marriage children may be left with a thin slice of a depleted estate. If you make a will leaving the house to your spouse, your children still have their legal rights over the moveable estate — which may be small if most of your worth is the house, or awkwardly large if it is not. Whichever way you turn, one family tends to be served well and the other left short, and the variable that decides which is the accident of how your wealth happens to be divided between property and cash.

None of the standard fixes is free of cost. Leaving more to the children reduces what the spouse has to live on. Leaving the lot to the spouse and trusting them to pass it on to your children later is exactly the arrangement that fails when a surviving spouse remarries or simply changes their mind, since they can rewrite their own will. Forcing a sale of investments to meet legal rights can wreck a carefully built portfolio. The tension is real, and it is not solved by clever drafting alone, because legal rights cannot be drafted away. It has to be solved with money that is ring-fenced for one side.

Electing and discharging legal rights

A child who is both left something in the will and entitled to legal rights cannot take both. They must elect: accept what the will gives them, or reject it and claim their legal rights out of the moveable estate instead. This election is a genuine choice, and a child will usually take whichever is worth more, so leaving a child a legacy does not automatically extinguish their legal rights — it simply gives them an alternative to weigh.

Legal rights can also be discharged, meaning given up, but only by the person entitled and only by agreement. A child can renounce their legal rights during the parent's lifetime, sometimes in exchange for a lifetime gift, or after death once they understand what they are worth. What a parent cannot do is discharge the child's rights for them. So if family harmony depends on everyone being content with the arrangement, that agreement has to be reached with the children, not imposed on them — and it is far easier to reach when there is enough money in the plan that no one has to lose.

Because legal rights are calculated on death from figures no one can predict in advance, families often find the safest course is to make sure a known sum exists for one side, independent of how the estate itself divides. That is where cover earns its place.

Where cover fills the gap the rules leave

Life cover written in trust is the cleanest way to break the second-marriage deadlock, because it creates money outside the estate that is earmarked for the people you choose. A policy written in trust for your first-marriage children pays them directly, quickly, and without the estate having to sell the house or liquidate investments to find the cash. It can be sized to give them a fair share while leaving the home and an income intact for your surviving spouse.

The same tool works the other way round. If your plan is to leave the house and moveable estate largely to your children, cover in trust for your spouse can give them the security they need without forcing your children to wait for a second death that might never benefit them. Either way, the principle is the same: rather than asking one family to give up the home, you fund the other side separately so the estate can pass as you intend. A broker can help you match the sum to the shares you have in mind, and you can begin by getting life insurance quotes to see what that looks like against your own figures.

Two practical checks belong alongside the cover. Pensions and death-in-service benefits usually pass outside the estate under a nomination, so they do not count as moveable estate for legal rights, and an out-of-date nomination form is a common way for the wrong person to receive them. And the way the home is owned should be reviewed, since a survivorship destination in the title can pass your share to a co-owner regardless of your will. If either partner also has maintenance or support obligations to insure, our guide on whether separated parents should insure each other covers how to structure that, and the single-income exposure many blended families carry is set out in what one income and two children looks like with nobody behind you.

Reform of Scottish succession law, including proposals to extend children's protected rights to heritable property, has been discussed for years but not enacted, so the moveable-only rule described here remains the law you have to plan around today. Death during the working years is uncommon in any single year but not rare across a marriage, which is why blended families who assume they have time are so often the ones caught out; National Records of Scotland publishes the registered deaths that show how the risk sits across the age range.

Source: National Records of Scotland, Vital Events Reference Tables, deaths (Chapters 5–6), published under the Open Government Licence v3.0.

For the wider set of questions that catch remarried couples, stepchildren and other non-standard households, our guide to dependants and unusual family shapes brings the related topics together.

Frequently asked questions

Can I disinherit my children in Scotland?

Not entirely. Children have legal rights over your moveable estate, which covers money, investments and possessions but not land or buildings. A will cannot remove them. Where a spouse survives, the children share one third of the net moveable estate between them; where none survives, they share one half.

Do legal rights cover the house?

No. Legal rights apply only to the moveable estate. Heritable property, meaning the house and land, sits outside them, though a surviving spouse's prior rights can attach to the family home on intestacy. This is why Scottish blended families so often find the cash exhausted while the house stays untouched.

How do I treat both families fairly?

Decide what each side should receive, then make sure the money exists. A life policy written in trust for the children of your first marriage pays them directly, which can satisfy them without the estate selling anything. Legal rights can also be discharged, but only by agreement with the person entitled to them.