Understanding Legal Rights Claims in Scottish Succession Law

When someone dies in Scotland, the way their money, property, and possessions are passed on is governed by succession law. Many people assume that if you leave a Will, everything will be distributed exactly as you have written it. However, in Scotland there is an important rule called legal rights, which means certain family members cannot be completely cut out of an estate.

Legal rights are often misunderstood, but they are a crucial part of planning your affairs and of dealing with an estate after someone dies. In this article, we’ll break down what legal rights are, who can claim them, and how they work in practice.

What Are Legal Rights?

Legal rights are a type of automatic inheritance claim given by law to a person’s spouse or civil partner and to their children. These rights apply whether or not there is a Will. They cannot be ignored as they are a debt on the estate, and they take priority over what the Will says.

The idea is simple: Scottish law protects the closest family members by ensuring they receive a share of the deceased’s “net moveable estate” . Moveable estate includes things like:

• Money in the bank
• Investments and shares
• Cars, jewellery, and personal possessions
• Furniture and household contents

It does not include land and buildings (that’s called heritable property), such as a house or flat. Legal rights apply only to the moveable estate.

The meaning of “net moveable estate”

The moveable estate is valued as at date of death. The figure as so calculated falls to be reduced by deduction of:

• Funeral expenses
• Moveable debts due by the deceased as at his or her date of death (excluding what are regarded as heritable debts — for example a mortgage)
• Inheritance tax
• Expenses incurred for obtaining Confirmation and realising the moveable assets.

Who Can Claim Legal Rights?

Two groups of people can make a legal rights claim:

• The surviving spouse or civil partner

They are entitled to a fixed share of the net moveable estate, regardless of what the Will says.

• Children of the deceased (including adopted children)

Children (or children of a predeceasing child) also have a fixed entitlement, which must be honoured before the rest of the estate is divided.

If someone is unmarried and has no children, there are no legal rights claims on their estate.

How Are Legal Rights Calculated?

The law sets out the following entitlements:

• If there is both a surviving spouse/civil partner and children:
  • The spouse or partner is entitled to one-third of the net moveable estate.
  • The children together are entitled to one-third of the net moveable estate, divided equally between them.
  • The remaining one-third is known as the free estate, which can be passed on under the Will (or by the rules of intestacy if no Will exists).
• If there are children but no surviving spouse/civil partner:
  • The children are entitled to one-half of the net moveable estate, shared equally between them.
• If there is a surviving spouse/civil partner but no children:
  • The spouse or partner is entitled to one-half of the net moveable estate.

These rules apply whether or not the deceased left a Will.

Key Features of Legal Rights

To make this clearer, here are the main points, explained simply:

• They apply automatically
  Legal rights exist by law. They do not need to be specifically mentioned in a Will to take effect.
• They can be claimed or discharged
  Beneficiaries can choose to claim their legal rights, or they may agree not to claim them (known as “discharging” their rights). For example, a child may choose to accept their entitlement under a Will instead.
• They apply only to moveable estate
  Legal rights don’t cover heritable property such as land, houses, or commercial premises. Those pass either by the Will or under intestacy rules.
• They last for 20 years
  Legal rights do not disappear immediately. In Scotland, a person entitled to claim has up to 20 years after the death to do so. This can cause difficulties in winding up estates if the possibility of a claim isn’t dealt with.
• They are a fixed cash entitlement
  Legal rights are always taken as a cash sum, even if the estate is made up of physical items. This means assets sometimes need to be sold to raise money to meet the claim.
• They can create tension with Wills
  If a Will leaves everything to, say, one child, the other children still have the right to claim their share of the moveable estate. This can reduce the inheritance left to the chosen beneficiary.

How Legal Rights Interact With a Will

 Legal rights take priority over what a Will says. This means:

• If a Will leaves everything to friends, charity, or even to one child, the surviving spouse or other children can still claim their share.
• If someone chooses not to claim their legal rights, they may instead accept whatever has been left to them in the Will. But they cannot “double dip” — it’s one or the other.

For example, if a Will leaves a child £20,000 but their legal rights entitlement is only £10,000, it makes sense for them to take the £20,000 and discharge their legal rights.

How Legal Rights Interact With Intestacy

If someone dies without a Will, the law sets out who inherits under intestacy rules. Legal rights still apply, but they are taken into account after prior rights (a separate protection for surviving spouses and civil partners, which covers things like the family home and furnishings).

This can make intestate estates complicated, as both prior rights and legal rights have to be worked out before the rest of the estate is divided.

Cohabitants and Legal Rights

An important point to note is that cohabitants (unmarried partners who live together) do not have legal rights. However, they can apply to court for financial provision under the Family Law (Scotland) Act 2006. This claim must be made within six months of the death, and it is not automatic like legal rights.

This difference often surprises people, and it highlights why making a Will is so important if you want to provide for a cohabiting partner.

Practical Issues With Legal Rights

Dealing with legal rights in practice can be tricky. Some of the challenges include:

• Valuing the estate
  Executors need to calculate the value of the moveable estate accurately before working out legal rights shares. This may involve getting professional valuations.
• Balancing the estate
  If most of the estate is tied up in assets (like shares, cars, or jewellery), the executors may need to sell some items to raise cash to pay legal rights claims.
• Communication between family members
  Legal rights claims can cause disputes, especially if one person was left more in the Will. Executors must ensure that all entitled parties are informed of their rights.
• Impact on estate planning
  For those making a Will, it is important to remember that legal rights cannot be avoided. Some people choose to plan around them by making gifts during their lifetime or considering trusts.

 Let’s look at an example.

John dies leaving an estate worth £300,000. This is made up of:

• A house worth £180,000 (heritable property)
• Bank accounts and investments worth £100,000
• Personal belongings worth £20,000

His Will leaves everything to his daughter, Sarah.

John is survived by his wife, Mary, and his son, David, as well as Sarah.

The moveable estate is £120,000 (the bank accounts, investments, and belongings). Legal rights apply to this amount.

• Mary is entitled to one-third = £40,000
• David and Sarah are entitled to share one-third = £40,000 ÷ 2 = David is entitled to £20,000. The remaining £20,000, which Sarah was entitled to claim, goes back into the free estate as she will take her entitlement under the Will instead.
• The remaining £40,000 is the free estate, which goes under the Will to Sarah

This means Sarah does not receive the full estate as her father wished. She gets the house (£180,000) and the free estate (£60,000), but her share of the moveable estate is reduced by Mary and David’s legal rights entitlement.

Final Thoughts

Legal rights are a cornerstone of Scottish succession law. They ensure that spouses, civil partners, and children cannot be completely excluded from inheritance. But they can also complicate estate planning and the administration of estates.

If you are making a Will, it’s essential to keep legal rights in mind and take advice on how best to structure your estate. If you are an executor, you must deal with potential claims carefully and fairly before distributing the estate.

Every family situation is different, and legal rights can become complex when blended families, estranged relatives, or large estates are involved. Getting proper legal advice can save a great deal of stress, time, and conflict.

If you are looking for an experienced Private Client solicitor to help you with your Will or estate planning or to gain a greater understanding of Legal Rights, then please contact our experienced Private Client Team on 01324 622 888 or contact help@randa-fa.co.uk and we would be delighted to assist.