0141 674 6401

Legal Rights Claims, Scotland

Under Scots law, surviving spouses, civil partners and children have automatic financial rights over a deceased person’s estate – rights that exist regardless of what any Will says, and cannot be removed by one. Known as legal rights, they are among the most powerful protections in Scottish succession law. 

If you have recently lost a spouse or parent, you may be entitled to claim a share of their estate even if you were left nothing in their Will. If you are an executor or beneficiary, you have a legal obligation to account for these rights correctly, whether or not anyone has raised them. 

Our specialist solicitors advise claimants and estates alike, ensuring legal rights are properly identified, calculated and resolved. 

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WHAT ARE LEGAL RIGHTS?

Legal rights in Scotland – the inheritance rights no Will can remove

Legal rights in Scotland – collectively known in Scottish law as the prior rights and legal rights – are a set of statutory entitlements that certain family members hold over the deceased’s estate. What makes them distinctive is that they cannot be defeated or reduced by the terms of a Will. Even if a Will leaves everything to one person and excludes everyone else, a surviving spouse and the deceased’s children may still have enforceable claims under the legal rights framework. 

The rights are rooted in the Succession (Scotland) Act 1964 and apply to estates administered in Scotland. They are divided into two groups: prior rights, which protect the surviving spouse’s interest in the family home and household contents, and legal rights proper (ius relictae and legitim) which protect the moveable estate. 

These rights are not automatic in the sense that they apply without any action. A person entitled to claim must decide whether to exercise them – and that decision has significant consequences for how the rest of the estate is distributed. It is also a decision that must be made with proper legal advice, because electing to claim may mean giving up entitlements under the Will, and vice versa. 

Family Solicitor

Who is entitled to legal rights in Scotland?

Legal rights apply in every estate where a spouse, civil partner or child survives the deceased – regardless of the size of the estate or the terms of any Will. You should seek advice if you fall into any of the following situations and are concerned about your share of inheritance.

You were left out of a Will, or received less than you expected

If a spouse, civil partner or parent has died and their Will makes no provision for you (or significantly less than you anticipated) you may still have an enforceable claim under Scots law. Legal rights exist precisely to protect close family members from being disinherited.

You are an executor administering an estate

Legal rights must be accounted for in every eligible estate, whether or not a claim has been made. Failing to do so can expose you to personal liability. If you are administering an estate and are unsure how to handle legal rights, specialist advice is essential.

You are a beneficiary concerned about your share of the estate

If legal rights are claimed against an estate you stand to benefit from, this will affect the distribution. Understanding your position early (and how a claim might be satisfied) can help avoid disputes and delays.

How does the claims process work?

Claiming legal rights involves several distinct stages, and the right approach will depend on whether you are a claimant or an executor.

  1. Establishing entitlement – we identify whether legal rights apply to the estate in question, who is entitled to claim and what the moveable estate comprises.

  2. Valuing the claim – legal rights are calculated on the net moveable estate only, excluding heritable property such as land and buildings. Accurate valuation is essential, and executors are obliged to provide a full accounting.

  3. Considering the options – a claimant cannot receive both their legacy under the Will and their legal rights — they must elect one or the other. We advise on which option is likely to be more advantageous, taking into account the full circumstances.

  4. Negotiation and resolution — Many legal rights claims are resolved without litigation through careful negotiation between the parties. Where executors have failed to account properly, or where disputes arise, we are experienced in pursuing or defending claims through the courts.

  5. Formal discharge — Once a claim is agreed and satisfied, a formal discharge is granted. Where a claimant chooses not to claim, this is also formally recorded to protect all parties.

**it’s worth noting that a claimant has a period of 20 years from the date of death to make a claim of legal rights on an estate in Scotland – after that, it expires.

IMPORTANT NOTE FOR EXECUTORS

Executors must account for legal rights before distributing

As executor, you must identify all potential legal rights claimants and give them a reasonable opportunity to elect whether to claim. You are also responsible for the legal rights calculation against the estate value. Distributing the estate without properly accounting for legal rights can expose you to personal claims from those entitled.

We advise executors on how to identify and calculate legal rights, how to approach the election process with claimants, and how to document the estate accounts to protect against subsequent challenges.

YOU MAY HAVE A LEGAL RIGHTS CLAIM IF:

Someone close to you has died in Scotland

…and one of the following applies to you:

  • You are the surviving spouse or civil partner to the deceased
  • You are a child of the deceased - this includes children related by both blood and adoption but not step-children
  • You are a child of the deceased (including adult children)
  • The Will did not leave you what you expected
  • There is no Will at all
Find out what you may be entitled to

WHY JONES WHYTE

Specialist advice on legal rights claims in Scotland

Legal rights under Scots law are one of the most technically complex areas of succession — and one of the most practically important. The interaction between prior rights, legal rights and will provisions, particularly in estates that include both heritable property and moveables, requires careful analysis before any distribution is made.

  • We advise both claimants and executors - we understand the position from both sides and can identify the best outcome for your specific circumstances.
  • We calculate the legal rights fund accurately, accounting for prior rights, debts, heritable and moveable assets correctly to ensure the calculation is right before any election is made.
  • We advise on the election decision clearly, laying out the financial consequences of each option before you commit to an irrevocable choice.
  • Accredited by the Law Society of Scotland with specialist private client solicitors experienced in Scottish succession law.

What Our Clients Say

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The highly experienced Probate lawyers at Jones Whyte are always on hand to help executors and families deal with the complex bereavement process in Scotland.

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Stephanie Hutton

Stephanie Hutton

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Rebecca Devine

Rebecca Devine

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Nikki Bonini

Nikki Bonini

Solicitor and Legal Link Team Lead

Think you may have a legal rights claim - or need to account for one?

Whether you are a surviving spouse or child who believes you may be entitled to more than the will provides, or an executor who needs to understand how to account for legal rights before distributing the estate, we can advise on your position in a single free initial call.

Call 0141 674 6401

MORE DETAILED INFORMATION ON LEGAL RIGHTS

Understanding each legal right under Scots law

Each of the three main rights operates differently, applies to different assets and involves a different decision. Here is a thorough explanation of each, because getting these right is one of the most important parts of any Scottish executry.

Prior rights

The first claim on the estate – applies before everything else

Spouse / civil partner only

Prior rights are the most powerful of the three, because they take effect before the legal rights proper, before the will’s provisions and before intestacy rules. They apply only to the surviving spouse or civil partner – not to children.

Prior rights cover three things: the right to the family home (or its value up to £473,000) if the deceased owned or had a tenancy in it; the right to household contents up to £29,000; and a financial provision of up to £50,000 if there are no children, or £29,000 if there are. These figures are set by statutory instrument and are periodically reviewed.

Prior rights apply on intestacy – where there is no will. Where there is a will, the surviving spouse must choose between taking prior rights (and giving up what the will leaves them) or accepting the will’s provisions instead. This election must be made carefully.

Current prior rights amounts (2026)

  • Family home or tenancy – up to £473,000

  • Household contents – up to £29,000

  • Financial provision – up to £50,000(no children)

  • Financial provision – up to £29,000(with children)

Prior rights amounts are set by statutory instrument – these figures are correct as of May 2026 but are subject to review. Verify before relying on them in any estate calculation.

Ius relictae / ius relicti

The surviving spouse’s share of the moveable estate

Spouse / civil partner only

Ius relictae (for a widow) and ius relicti (for a widower) – together referred to here as ius relictae – give the surviving spouse or civil partner a right to a share of the deceased’s worldwide net moveable estate. Moveable estate means everything except heritable property (land and buildings).

The share is one-third of the net moveable estate if there are surviving children, or one-half if there are no children. This right exists regardless of the terms of any Will – it cannot be excluded by the deceased, though it can be waived by the surviving spouse.

A surviving spouse who chooses to claim ius relictae instead of their entitlement under the Will must give up what the Will provides them with. The choice is an election – and it is irrevocable once made. Legal advice before making this election is essential.

Ius relictae – key points

  • Applies to net moveable estate only, not heritable property

  • One-third of net moveables where children survive

  • One-half of net moveables where no children survive

  • Cannot be excluded by the Will, but can be waived by the claimant

  • Claimant must elect between ius relictae and their Will entitlement

  • Election is irrevocable – take legal advice before deciding

Legitim

The children’s legal share – the right no will can remove

All children of the deceased

Legitim (sometimes called the bairn’s part) gives all children of the deceased (including adult children and, in some cases, adopted children) a right to a share of the net moveable estate. Like ius relictae, it applies regardless of what the Will says and the deceased cannot use a Will to disinherit their children of this portion.

The legitim fund is one-third of the net moveable estate if there is a surviving spouse, or one-half if there is no surviving spouse. This fund is divided equally between all children who elect to claim it.

A child who is entitled to receive something under the will must choose between claiming legitim and accepting their Will entitlement – the same election principle as for ius relictae. A child who claims legitim gives up their Will entitlement, and vice versa. The election is permanent, and in many estates the financial difference between the two options is significant.

Legitim – key points

  • Applies to all children, including adult children

  • One-third of net moveables where a spouse also survives

  • One-half of net moveables where no spouse survives

  • Shared equally between all children who elect to claim

  • Cannot be excluded by the Will

  • Children must elect between legitim and their Will entitlement

The election between legitim and a Will entitlement is irrevocable and can have significant financial consequences. Always take specialist legal advice before electing.

Frequently asked questions on claiming legal rights in Scotland

No. The legal rights of ius relictae and legitim cannot be excluded by the terms of a Will. A person entitled to these rights holds them by operation of law - they exist regardless of what the Will says, regardless of how the will is drafted and regardless of the deceased's intentions. A Will that purports to deprive a surviving spouse or child of their legal rights is simply ineffective to do so. The only way these rights can be waived is voluntarily, by the person entitled to them - and this is irrevocable once done. This is one of the most fundamental differences between Scottish law and English law on inheritance.

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