Legal Rights in Scotland: How They Impact Wills and Succession Planning

What Are Legal Rights in Scotland?

Legal rights are a statutory entitlement under Scots law that protect certain family members from being disinherited. They give a surviving spouse, civil partner, or children an automatic claim to a share of a deceased person’s estate, regardless of the instructions set out in the will. This means that even if a will leaves the estate to other beneficiaries, legal rights claims must still be honoured before those wishes can be fully carried out.

For example, if someone leaves their entire estate to a friend or charity, their spouse and children may still step in to claim their legal entitlement. Executors are then legally obliged to satisfy those claims before distributing the rest of the estate.

Who Is Entitled to Legal Rights?

In Scotland, legal rights can be claimed by a surviving spouse or civil partner, as well as by surviving children. If a child has passed away before the deceased, that child’s descendants – such as grandchildren – may inherit their share through a process called representation.

For instance, if a father dies leaving behind a wife, one surviving daughter, and one deceased son with two children of his own, the daughter and the grandchildren would be entitled to share the children’s portion of the estate between them.

What Part of an Estate Do Legal Rights Apply To?

Legal rights apply only to the moveable estate. This includes assets such as money in bank accounts, savings, investments, shares, and personal possessions like cars, jewellery, and furniture.

They do not apply to heritable property, which covers land and buildings such as houses, flats, or commercial premises. For example, if a person dies leaving a house worth £300,000 and £200,000 in savings, only the £200,000 would form the basis of a legal rights claim. The house would be excluded unless it was sold and the proceeds converted into cash.

This distinction can have major implications for families, particularly where most wealth is tied up in property or family businesses. Without careful planning, executors may need to sell assets such as investments or company shares to satisfy legal rights claims, which could disrupt business continuity or alter how wealth passes through generations.

Can legal rights override a will?

Yes. Legal rights always take precedence over the contents of a will. Executors are legally obliged to honour these claims first.

Example: If a will leaves £100,000 in savings to a close friend, but the deceased also had a surviving spouse, the spouse can still claim their share under legal rights. This might mean the friend receives less than expected, as the spouse’s entitlement comes off the top.

How much can be claimed under legal rights?

The amount depends on who survives the deceased:

If there is a spouse/civil partner and children, each group is entitled to one-third of the moveable estate.

If there are only children, they share one-half.

If there is only a spouse or civil partner, they receive one-half.

Example: If the moveable estate is worth £90,000 and the deceased leaves behind a wife and two children, the wife can claim £30,000, and the children together share £30,000 (£15,000 each). The remaining £30,000 can be distributed according to the will.

Do legal rights apply to property and land?

No. Legal rights apply only to moveable estate. Heritable property such as houses, land, and commercial buildings are excluded unless they are sold and converted into cash.

Example: If someone dies owning a house worth £250,000 and £50,000 in savings, legal rights claims will only be based on the £50,000 savings. The house remains outside the scope of legal rights unless sold.

Can grandchildren claim legal rights?

Yes, but only if their parent (the child of the deceased) has already passed away. This is known as representation.

Example: If a father dies survived by one living daughter and by two grandchildren from a deceased son, the daughter receives her share directly, and the grandchildren share the son’s entitlement equally.

Can legal rights affect a family business?

Yes. If shares in a business or partnership interests form part of the moveable estate, they may need to be sold to satisfy legal rights claims. This can disrupt the business or force out family members.

Example: A deceased father leaves a will passing his family company shares to his eldest son. However, his other children claim their legal rights. If the estate doesn’t have enough cash to meet the claim, some of the company shares may need to be sold, affecting control of the business.

Can legal rights be waived?

Yes, but only if the entitled person voluntarily renounces them — usually through a legal document signed during the deceased’s lifetime. This should always be done with legal advice.

Example: A child who is financially secure may agree to waive their legal rights so that a family business can pass undisturbed to a sibling who works in the company.

Why are legal rights important in succession planning?

Legal rights can completely change how an estate is distributed, potentially causing disputes or forcing the sale of assets. By considering them during succession planning, you can protect your business, reduce family conflict, and ensure your wishes are respected as much as possible within the law.

Example: A farmer who wants to leave the family farm to one child may use succession planning tools such as trusts, gifts during their lifetime, or insurance policies to ensure their other children still receive value without disrupting the farm’s continuity.