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Scottish intestacy operates in layers: prior rights first (surviving spouse gets home, furniture, and financial provision), then legal rights (legitim for children — one-third or half of moveable estate), then the free estate under the Succession (Scotland) Act 1964. These rules are very different from English intestacy.
Prior rights arise only on intestacy (no will) and benefit the surviving spouse or civil partner. They are satisfied before any other distribution. The figures are set by statutory instrument — currently the Prior Rights of Surviving Spouse and Civil Partner (Scotland) Order 2011, in force since 1 February 2012:
Where the surviving spouse/civil partner was ordinarily resident in a dwelling house the deceased owned or leased, they have a right to that house up to a value of £473,000. If the house is worth more, they receive £473,000 in cash instead of the house. If less, they receive the house.
The surviving spouse/civil partner has a right to furniture and household effects in the family home up to £29,000.
The surviving spouse/civil partner receives a cash sum of £50,000 if the deceased left children or grandchildren, or £89,000 if they did not. The smaller sum applies where there are children because the children take the rest of the estate; the larger sum applies where there are none.
Prior rights can take up the entire estate in smaller estates, leaving nothing for children or other relatives. This is one of the reasons why making a will in Scotland is particularly important.
Legal rights are a unique feature of Scots law. Unlike English law, they apply even when a will exists — they are a minimum guaranteed entitlement that cannot be removed by any will. They apply to the net moveable estate (essentially, all assets other than heritable property — land and buildings) after debts are deducted.
Children (and their descendants) have a right to:
Legitim cannot be defeated by a will. A child must elect between their legitim claim and any legacy left to them by will — they cannot take both.
The surviving spouse or civil partner has a similar right:
Again, the surviving spouse must elect between their legal right and any legacy left to them by the will.
After prior rights and legal rights are satisfied, the remaining "free estate" passes under the intestacy rules of the Succession (Scotland) Act 1964. The order of priority is:
The Scottish intestacy rules differ significantly from English rules in giving siblings an equal priority alongside parents, and in the broader inclusion of more distant relatives. For a comparison with English intestacy, see our guide on the complete UK probate guide.
An unmarried partner has no prior rights and no legal rights, and does not appear in the free-estate order. But Scotland does give a surviving cohabitant something England and Wales does not: under section 29 of the Family Law (Scotland) Act 2006, where the deceased died intestate and was domiciled in Scotland, the survivor can apply to the court for a capital sum or a transfer of property out of the net intestate estate.
The award is discretionary and cannot exceed what the survivor would have received as a spouse or civil partner. The application must be made within six months beginning with the day the deceased died — a much shorter and earlier deadline than the six months from the grant that applies to a claim in England and Wales, and it runs from the death itself rather than from any grant.
In Scotland, a will cannot override legal rights — children and surviving spouses will always have their minimum entitlement. However, a will allows you to:
For those dying without a will in Scotland, an executor-dative must be appointed by the court to administer the estate.