The fraction your will cannot touch
England and Wales start from testamentary freedom: you may in principle leave your estate to anyone, and a disappointed relative has to persuade a court to intervene. Scotland does not start there. If you die domiciled in Scotland, your surviving spouse or civil partner and your children hold legal rights, an automatic entitlement to a fixed share of your net moveable estate. No court application, no discretion and no test of financial need. The entitlement simply exists, and your will cannot remove it.
This page covers Scotland. If the person who died was domiciled in England, Wales or Northern Ireland, the rules here do not apply and the equivalent route is a discretionary court claim, covered in our guide to Inheritance Act 1975 claims. Scotland also uses confirmation rather than probate, explained in our guide to the Scottish confirmation process. What follows is general information, not legal or financial advice, and deliberately not a guide to pursuing or resisting a claim.
Moveable and heritable: the distinction that decides the outcome
Everything turns on one classification. Scots law divides an estate into two categories, and legal rights attach to only one of them.
| Category | Typical contents | Subject to legal rights? |
|---|---|---|
| Moveable estate | Cash and bank accounts, shares and investments, cars, furniture and household contents, jewellery, business assets that are not land | Yes |
| Heritable estate | Land, houses, flats, farms, commercial buildings and interests in them | No |
The Scottish Government's bereavement guidance describes moveable estate as covering "money, shares, cars, furniture and jewellery" while the heritable estate "covers land and buildings", and confirms that a deceased person's spouse or civil partner and children hold indefeasible rights in the moveable estate with no such rights existing in relation to heritable property.
Two points sharpen this. Legal rights are a claim for a sum of money against the executor, not a right to particular items, so nobody can insist on a specific painting or a named account. And the sum is calculated on the net figure: section 10(2) of the Succession (Scotland) Act 1964 provides that a claim to legal rights is calculated by reference to so much of the net moveable estate as remains after debts and, on intestacy, after prior rights.
The fractions, and how they shift
The moveable estate divides into thirds or halves depending on who survives. What is left over is traditionally called the dead's part, and that is the portion the will actually controls.
| Who survives | Spouse or civil partner takes | Children take between them | Dead's part (governed by the will) |
|---|---|---|---|
| Spouse or civil partner and children | One third | One third | One third |
| Spouse or civil partner, no children | One half | Nil | One half |
| Children, no spouse or civil partner | Nil | One half | One half |
| Neither | Nil | Nil | All of it |
The spouse's or civil partner's share carries the old names jus relictae where a wife survives and jus relicti where a husband survives. The children's share is legitim, sometimes called the bairn's part. Grandchildren have no share of their own while their parent is alive, and more remote relatives, stepchildren who were never adopted and cohabiting partners have no legal rights at all.
Worked example: the same money, two very different results
Struan Bell dies domiciled in Aberdeenshire. He and his wife Marion had been estranged for years, and his will leaves his whole estate to his brother Callum. Two adult children, Rhona and Douglas, survive him. His estate:
- Family home: £320,000 (heritable)
- Savings, investment account, car and contents: £180,000 (moveable)
- Debts and funeral costs met from the moveable estate: £20,000
- Net moveable estate: £160,000. Net estate overall: £480,000
Because both a spouse and children survive, the net moveable estate splits three ways. Marion's jus relictae is one third, £53,333. Rhona and Douglas share one third as legitim, £26,667 each. The remaining third is the dead's part and passes under the will. Callum therefore receives the £320,000 house in full plus £53,333, a total of £373,333, roughly 78% of the net estate, while the wife and both children together receive £106,667.
Now change one fact. Suppose Struan had sold the house years earlier and held the proceeds in investments, so the £500,000 gross estate is entirely moveable. After the same £20,000 of debts, the net moveable estate is £480,000. Marion takes £160,000, the children share £160,000 (£80,000 each), and Callum takes the remaining £160,000. The family's share jumps from £106,667 to £320,000. Same wealth, same will, same relatives. The whole difference is whether the value sat in bricks or in a bank, and that asymmetry is a long standing feature of the system rather than a loophole.
When a child has died first: representation and legitim
A predeceasing child does not simply drop out. Section 11 of the 1964 Act gives that child's own issue the like right to legitim as the child would have had if he had survived the deceased. How the legitim fund then divides depends on who is claiming:
- All claimants of the same degree (for example three surviving children, or four grandchildren where all the children predeceased): the fund is divided equally between them.
- Claimants of different degrees (for example one surviving child alongside the two children of a child who died first): the fund is divided into parts, each nearest surviving relative takes one part, and the issue of a predeceasing relative take that relative's part between them per stirpes, meaning by branch of the family rather than by head.
So where one of two children has died leaving two children of their own, the surviving child takes half the legitim fund outright and the two grandchildren take a quarter each. Section 11 also preserves the rules on collation of advances, and confirms that where only the issue of a predeceasing child claim, the surviving spouse's fraction is still worked out as if a child had survived.
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Legal rights or the legacy: it is one or the other
A spouse, civil partner or child named in the will faces a choice, not a windfall. The Scottish Government's guidance puts it plainly: where someone has rights under a will and legal rights, "he or she cannot have both. Such a person must choose between them".
The machinery behind that is section 13 of the 1964 Act, headed equitable compensation. A will making provision for a spouse or issue, which does not declare the provision to be in full and final satisfaction of the right to jus relicti, jus relictae or legitim, takes effect as if it contained that declaration, unless it expressly says the opposite. A legacy is therefore presumed to be offered instead of legal rights rather than on top of them.
Which option is larger cannot be judged from the will alone, because it turns on the executor's valuation of the net moveable estate, rarely known when the will is read. Legal rights can also be discharged, in the granter's lifetime or after death, though section 12 prevents a post-1964 ante-nuptial marriage contract from discharging a child's legitim. Decisions of this kind belong with a Scottish solicitor working from the actual figures.
How this differs from contesting a will in England and Wales
English and Welsh guidance often treats legal rights and an Inheritance Act 1975 claim as regional variants of one idea. They are structurally different.
| Scotland: legal rights | England and Wales: Inheritance Act 1975 | |
|---|---|---|
| Nature | Automatic entitlement, fixed by statute | Discretionary award made by a court |
| Court needed? | No, it is claimed from the executor | Yes, an application to court is required |
| Who qualifies | Surviving spouse or civil partner and children (and issue of a predeceasing child) | Defined categories including spouse, former spouse, cohabitant, child, person treated as a child, dependant |
| What is assessed | Nothing. The fraction applies regardless of need or conduct | Whether reasonable financial provision was made, judged against statutory factors |
| Assets in scope | Net moveable estate only. Land and buildings excluded | The net estate, including land and buildings |
| Amount | Fixed fraction: one third or one half | Whatever the court considers reasonable, with no fixed share |
| Timing | 20 year long negative prescription | Six months from the grant of representation, subject to the court's power to extend |
A Scottish spouse or child therefore proves nothing to secure their fraction, while an English or Welsh applicant may recover far more than a third or nothing at all depending on the court's view. For an estate south of the border, start with our overview of how contesting a will works in the UK.
Time limits, and the things legal rights are not
Legal rights carry no short statutory deadline. The obligation to pay them falls under the long negative prescription in section 7 of the Prescription and Limitation (Scotland) Act 1973, which extinguishes an obligation on the expiry of the continuous period of 20 years after the date it became enforceable. In practice the estate will have been wound up and distributed long before that period runs out.
Three related things are regularly mistaken for legal rights:
- Prior rights are different, and apply only on intestacy. Where there is no will, sections 8 and 9 of the 1964 Act give a surviving spouse or civil partner an interest in the dwelling house up to £473,000, furniture and plenishings up to £29,000, and a cash sum of £50,000 where issue survive or £89,000 where they do not, set by the Prior Rights of Surviving Spouse and Civil Partner (Scotland) Order 2011 for deaths on or after 1 February 2012. They come first, legal rights are calculated on what is left, and where there is a valid will they do not arise at all. See also whether confirmation is needed in Scotland.
- Cohabiting partners have no legal rights. A surviving cohabitant's only route is a discretionary court application under section 29 of the Family Law (Scotland) Act 2006, which arises only where the deceased died intestate, must be made within six months of the death, and cannot award more than a spouse or civil partner would have received. A will therefore closes that route entirely.
- Legal rights are not inheritance tax planning. Inheritance tax is UK wide and ignores the moveable and heritable split, so a Scottish estate faces the same thresholds as one in England. See the inheritance tax threshold in Scotland, and probate costs compared across England, Wales and Scotland for the administration expense.
Where to take this next
If you are writing a Scottish will, the useful exercise is knowing in advance what fraction of your moveable estate is already committed, so the rest of the plan is built on real numbers. Our making a will checklist is a sensible starting point, and the wills pillar guide covers the drafting decisions around it.
If you are an executor facing a legal rights entitlement, or a family member left out of a Scottish will, the classification of individual assets and the valuation of the moveable estate both carry real weight, and neither is always obvious from the paperwork. A solicitor qualified in Scots law should look at the actual estate. We can put you in touch with a Scottish specialist who handles succession work, so you get a straight read on where you stand.