Scotland: Prior Rights and Who Keeps the Family Home

If your husband or wife died in Scotland and left no will, you do not automatically inherit the family home. What a widow or widower gets is fixed by statute, through a set of entitlements called prior rights, and the right to the house is capped. If the deceased's interest in the home is worth less than the cap, you take the house itself. If it is worth more, you are entitled to a sum of money equal to the cap instead — and the property may have to be sold to produce it.

That single distinction decides whether a Scottish widow stays where she is. Everything else here follows from it.

Scots succession law is not a regional variation on the English rules. Where there is no will, the estate is distributed in a fixed order with almost no discretion in it: debts are paid first, then prior rights, then legal rights, then whatever is left. The housing cap is a cash figure set by order, and it has not moved since February 2012, while Scottish house prices have. That is why the awkward question — what happens above the cap — is now the ordinary case in large parts of the country rather than an unusual one.

Source: Prior Rights of Surviving Spouse (Scotland) Order 2011 (SSI 2011/436), made under the Succession (Scotland) Act 1964 and published on legislation.gov.uk. The limits are set by order and can be varied, so check the current figures before relying on them.

The short answer: the house is capped, not guaranteed

Prior rights give the surviving spouse or civil partner a first claim on the intestate estate, ahead of children, parents, siblings and everyone else. The first and largest of those claims is the right to the deceased's interest in a dwellinghouse in which the survivor was ordinarily resident at the date of death.

The right is not a right to the house in all circumstances. It is a right to the deceased's interest in it up to a value. Below that value you take the property. At or above it, the entitlement converts into a claim for a sum of money equal to the cap, and the executor has to find that money from somewhere. If the house is the only substantial asset — which it usually is — the only place to find it is the house.

Two consequences follow immediately, and they surprise people in opposite directions. The first is that a widow in a modest home is far better protected in Scotland than most people expect: the prior rights package can absorb an entire ordinary estate before a single child gets anything. The second is that a widow in an expensive home is far worse protected than she expects, because the cap does not rise with the value of the house. The bigger the family home, the more likely the family is to lose it.

The three prior rights, in the order they are taken

Prior rights are satisfied out of the estate after the deceased's debts and the costs of administration have been paid. There are three of them, and they are cumulative rather than alternative.

• The dwellinghouse right. The deceased's interest in a house in Scotland in which the surviving spouse was ordinarily resident at the date of death, up to £473,000. Where the deceased owned two or more such houses, the survivor chooses one, and must make that choice within six months of the death.
• Furniture and plenishings. Furniture and furnishings from that house up to £29,000. This is a right to the contents themselves, chosen by the survivor, not a right to a payment.
• The cash right. A financial provision of £89,000 where the deceased left no children or other descendants, or £50,000 where they did. It is paid out of the rest of the estate, with the burden shared proportionately between the heritable property and the moveable property.

Source: Prior Rights of Surviving Spouse (Scotland) Order 2011 (SSI 2011/436), and sections 8 and 9 of the Succession (Scotland) Act 1964, both published on legislation.gov.uk.

The order matters. The house comes first, the furniture second, the cash third, and each is taken from what is left after the previous one. In a great many Scottish estates the three together consume everything, which is why children of the marriage often receive nothing at all when a parent dies intestate and the other parent survives. That outcome is not a mistake in the drafting. It is the intended result of a scheme designed to keep a surviving spouse in the family home.

Two limits are worth stating plainly. Prior rights arise only where the deceased died domiciled in Scotland, and only where there is no will covering the property in question. And they belong to a spouse or civil partner — not to a partner you were not married to, however long you lived together.

What "the deceased's interest" actually means

This is the part that decides most real cases, and it is routinely misunderstood as meaning the price the house would fetch.

It does not. Two deductions come first. The first is ownership share: if the couple owned the house together in equal shares, the deceased's interest is a half share, not the whole property. The second is secured debt: the value of the interest is taken after deducting any loan secured over the property. A house with a large outstanding mortgage therefore represents a much smaller interest than its market value suggests.

Worked through, that means a jointly owned family home with a substantial mortgage will often fall well under the cap, because what is being valued is half of the equity rather than all of the bricks. An unencumbered home owned outright in the deceased's sole name is the case most likely to breach it. People tend to assume the opposite — that having paid the mortgage off makes the position safer — when for prior rights purposes it does the reverse.

A further rule applies where the house cannot sensibly be separated from something larger, such as a farmhouse forming part of a working farm, or a flat above a shop. Where taking the dwelling out would substantially reduce the value of the whole, the survivor receives the value of the interest rather than the property itself. Farming families are the group most often caught by this, and it is one of the strongest arguments for a will where land is involved.

The mortgage does not disappear either. If you inherit the house, you inherit it with the standard security still registered against it, and a surviving co-borrower remains liable for the whole loan. We set out how that machinery works in what happens to a Scottish mortgage and title when one owner dies, and how debts rank against the estate in dying in Scotland: prior rights, debts and the widow.

When the home is worth more than the cap

Here is the mechanism, stated as bluntly as it deserves. If the deceased's interest exceeds £473,000, the surviving spouse does not get the house. She gets a right to £473,000. The house belongs to the estate, and the executor must administer it in the interests of everyone entitled — including children from any relationship, who take the free estate after prior and legal rights are met.

In practice there are three ways that ends. The survivor pays the difference into the estate and takes the house, which requires cash she may not have. The beneficiaries agree to a transfer on terms, which requires goodwill that a second-marriage family may not have. Or the house is sold, the survivor is paid her entitlement in money, and she moves. It is the third outcome that brings people to this page.

Timing makes it worse. An executor cannot sell heritable property before confirmation is granted, and confirmation takes time — often months where the estate is not straightforward. Meanwhile the mortgage payments continue, the buildings insurance has to be maintained, and the survivor is living in a house she may be about to lose. Our guide to selling a mortgaged home before the grant is issued covers the same problem from the English side, and the practical pressure is identical in Scotland.

This is also where blended families come apart. Where the deceased had children from an earlier relationship, those children are entitled to what the rules give them, and they may reasonably want it realised. The dynamic, and the structures that avoid it, are set out in second marriage, one house, children from the first marriage.

Legal rights come next, and no will can defeat them

After prior rights are satisfied, legal rights are taken from what remains. They apply to the moveable estate only — money, investments, vehicles, personal possessions — and never to land or buildings.

A surviving spouse is entitled to one-third of the net moveable estate where the deceased left children, or one-half where they did not. Children collectively are entitled to one-third where a spouse survives, or one-half where none does, divided equally between them.

Source: Succession (Scotland) Act 1964, sections 10 and 11, published on legislation.gov.uk.

The critical feature of legal rights is that, unlike prior rights, they survive a will. You can leave your entire estate to a charity, a new partner or a cats' home, and your spouse and children can still claim their legal rights over the moveable estate. What a will can do is control the house, because heritable property is outside legal rights altogether. That asymmetry is the single most useful thing to understand about Scots succession: a will decides who gets the house; it cannot decide who gets a share of the money.

A person entitled to legal rights must choose between claiming them and taking what the will leaves them; they cannot do both. There is also a long window in which to claim, so an estate should not be wound up on an assumption that a child has decided not to.

What prior rights do not reach

Three categories of asset sit outside the whole scheme, and each of them changes the answer.

Property held under a survivorship destination. Many Scottish titles are taken in the names of both owners "and the survivor of them". Where that wording is present, the deceased's share passes automatically to the survivor and never forms part of the estate — so there is nothing for prior rights to attach to, and equally nothing for the children to inherit. Whether your title contains one is a matter of fact, and worth checking now rather than later. The detail is in our guide to survivorship destinations, standard securities and confirmation.

Life policies written in trust. A policy that names a beneficiary through a trust — in Scotland often set up under the Married Women's Policies of Assurance (Scotland) Act 1880 — pays to that beneficiary rather than into the estate. It is not swallowed by the order of distribution and it is not delayed by confirmation. Whether any policy pays out at all depends on its terms and on the insurer's assessment of the claim, but the routing is the point: money outside the estate arrives where it was aimed.

Cohabitants have no prior rights at all. An unmarried partner cannot claim under this scheme. There is a separate route under the Family Law (Scotland) Act 2006 allowing a surviving cohabitant to apply to the court for a discretionary award, but it must be raised within six months of the death, it cannot exceed what a spouse would have received, and it is decided case by case. If you are not married and your name is not on the title, you are in a materially weaker position than a spouse in the same house.

How families avoid the forced sale

There are only really three answers, and none of them can be arranged after the death.

The first is a will. Prior rights exist to fill a gap; a will closes it. Where a home is worth more than the cap, a will is the only reliable way to direct the house to the person living in it — and where children from an earlier relationship are involved, it is the only way to provide for them without doing it through a forced sale of the survivor's home. The background to intestate distribution is set out in dying without a will in Scotland and the prior rights order itself in what a Scottish widow gets before anyone else.

The second is liquidity. Most of these situations are not really disputes about the house; they are disputes about the fact that the house is the only asset. Where there is enough money elsewhere to pay the other beneficiaries what they are entitled to, the property does not have to be sold to do it. Life cover written in trust is the ordinary way of creating that money at exactly the moment it is needed, and level term cover — a fixed sum, not one that falls away with a mortgage balance — is what usually fits, because the size of the gap does not shrink over time.

The third is to check the title. A great many Scottish couples believe their title contains a survivorship destination when it does not, or assume it does not when it does. It takes one look at the deeds to know.

Death at working age in Scotland is uncommon in any single year and unremarkable across the length of a mortgage term. National Records of Scotland publishes the annual figures for deaths by age, which is the reference most Scottish advisers use when they talk about the risk over a term rather than the risk this year.

Source: National Records of Scotland, Vital Events Reference Tables, Chapter 5: Deaths.

If you have read this far and realised the family home would be exposed, you can get life insurance quotes and have an FCA-authorised broker price cover against the actual gap. Free, impartial help on the legal side is available from mygov.scot and Citizens Advice, and the confirmation process itself is explained by the Scottish Courts and Tribunals Service. The rest of this topic is collected in our guide to mortgages and property when someone dies.

Frequently asked questions

What does a surviving spouse get in Scotland if there is no will?

Prior rights come first. They give an interest in the dwellinghouse the survivor lived in up to £473,000, furniture and furnishings from it up to £29,000, and a cash sum of £89,000 where the deceased left no children or £50,000 where they did. Legal rights over the moveable estate follow after that, and only then does anything pass to the wider family. All of it is calculated after the deceased's debts have been paid.

What happens if the house is worth more than the cap?

The surviving spouse becomes entitled to a sum of money equal to the capped value rather than to the house itself. The property stays in the estate and the executor has to satisfy that entitlement alongside everyone else's, which in most estates means selling. Families in higher-value homes, and those who have paid the mortgage off, are the ones most exposed — because what is capped is the deceased's interest after any secured loan is deducted.

Can prior rights be avoided by making a will?

Yes. Prior rights arise only on intestacy, so a will controls who receives the house. Legal rights are different: a spouse or child can claim their share of the net moveable estate whatever the will says, and no drafting defeats that. So a will settles the house but not the money, which is why the two are usually planned together.