Intestacy Rules Scotland vs England: Key Differences Explained
Updated 15 May 2026 · 7 min read · England, Wales & Scotland
WillSafe UK covers England and Wales only. Our will kits are drafted for England and Wales under the Wills Act 1837. If you are domiciled in Scotland, you need a will drafted under Scots law. This article is an awareness guide only.
England and Wales and Scotland have entirely separate succession law systems. When someone dies without a will (“intestate”), the rules governing who inherits differ significantly between the two jurisdictions. Understanding the differences matters if you have connections to both — or if you are advising someone who does.
England and Wales: The Statutory Legacy System
In England and Wales, intestacy is governed by the Administration of Estates Act 1925 (as amended by the Inheritance and Trustees' Powers Act 2014). The rules are straightforward but can produce harsh results:
- Surviving spouse or civil partner inherits the first £322,000 (the statutory legacy, as at 2026) plus all personal chattels, then half of the remainder
- Children share the other half of the remainder
- Cohabiting partners inherit nothing regardless of relationship length
- Step-children who have not been legally adopted inherit nothing
- If there is no spouse and no children, the estate passes up the statutory order to parents, then siblings, then remoter relatives
- If no qualifying relatives survive, the estate passes as bona vacantia to the Crown
See our full guide to the intestacy rules for England and Wales.
Scotland: The Succession (Scotland) Act 1964
Scottish intestacy is governed by the Succession (Scotland) Act 1964. The system is fundamentally different, built on three layers:
1. Prior Rights
Before anyone else receives anything, a surviving spouse or civil partner is entitled to “prior rights” from the intestate estate:
- Dwellinghouse right: The right to the dwellinghouse (or its value) up to £473,000 (2023 figure, updated by Scottish Ministers)
- Furniture right: The right to furniture and plenishings up to £29,000
- Financial provision: A cash sum of up to £50,000 (if there are surviving children) or up to £89,000 (if no surviving children)
Prior rights are satisfied first, before legal rights and the general estate are distributed.
2. Legal Rights (Duthchas)
After prior rights are satisfied, surviving spouses/civil partners and children have automatic “legal rights” — a share of the net moveable estate(not heritable property such as land) that cannot be defeated by a will:
| Claimant | Share of net moveable estate | Legal name |
|---|---|---|
| Surviving spouse/civil partner only (no children) | ½ | Ius relictae / ius relicti |
| Surviving spouse/civil partner (with children) | ⅓ | Ius relictae / ius relicti |
| Children (no surviving spouse) | ½ | Legitim |
| Children (surviving spouse exists) | ⅓ | Legitim |
Legal rights apply even where there is a will — if a child is left out of a Scottish will, they can still claim legitim from the moveable estate. This is a fundamental difference from England and Wales, where a testator can disinherit adult children entirely.
3. The Free Estate
Whatever remains after prior rights and legal rights have been satisfied — the “free estate” — is distributed according to s.2 of the 1964 Act in a statutory order: surviving spouse, then issue (children/grandchildren), then parents and siblings, then more remote relatives. The Crown takes as ultimus haeres if no relatives survive.
Key Comparisons at a Glance
| Issue | England & Wales | Scotland |
|---|---|---|
| Governing law | Administration of Estates Act 1925 | Succession (Scotland) Act 1964 |
| Spouse/CP priority | Statutory legacy £322,000 + chattels + ½ remainder | Prior rights (house/furniture/cash) + ⅓ or ½ legal rights |
| Cohabitee rights | None under intestacy (s.1975 Act claim only) | Court application within 6 months (Family Law (Scotland) Act 2006 s.29) |
| Can you disinherit adult children? | Yes — by will | No — legitim (legal rights) cannot be excluded |
| Crown default | Bona vacantia | Ultimus haeres |
| IHT rules | UK-wide; same NRB and RNRB apply | UK-wide; same NRB and RNRB apply |
Why a Will Is Essential in Both Jurisdictions
Both intestacy regimes produce outcomes most people do not want — especially for unmarried couples and blended families. In England and Wales, a cohabiting partner inherits nothing without a will. In Scotland, a cohabiting partner has only a court-based claim with no guaranteed outcome. In both jurisdictions:
- Charities receive nothing under intestacy
- Step-children who are not legally adopted inherit nothing
- Specific gifts (heirlooms, sentimental items) cannot be directed to chosen people
- Executors must be appointed by the court, not chosen by the deceased
Frequently Asked Questions
Does a will made in England work in Scotland?
An English will can be valid in Scotland if it complies with the formal requirements of the Wills Act 1837 (or was validly made under the law of the country where it was executed). However, English wills are not drafted with Scottish succession law in mind — for example, they do not account for legal rights (duthchas), which cannot be defeated by a will. Anyone with property in both jurisdictions should seek specialist advice.
Can a cohabiting partner inherit under Scottish intestacy?
Scottish law gives cohabiting partners more protection than English law. Under s.29 of the Family Law (Scotland) Act 2006, a surviving cohabitee can apply to the court within six months of death for a financial provision from the intestate estate. The court has discretion to award a capital sum or property. In England and Wales, cohabitees have no equivalent statutory claim under intestacy — they can only claim under the Inheritance (Provision for Family and Dependants) Act 1975.
What are 'prior rights' in Scottish intestacy?
Prior rights are the first claims a surviving spouse or civil partner has on an intestate estate before anyone else, under ss.8–9 of the Succession (Scotland) Act 1964. They include: the right to the dwellinghouse (up to £473,000 as of 2023); the right to furniture (up to £29,000); and a financial provision (up to £50,000 if there are surviving children, or £89,000 if not). These figures are updated by Scottish Ministers.
What are 'legal rights' (duthchas) in Scottish succession?
Legal rights are an ancient feature of Scots law, preserved in the 1964 Act. They give surviving spouses/civil partners (ius relictae / ius relicti) and children (legitim) an automatic claim on the moveable estate that cannot be defeated by a will. The spouse/civil partner's share is one third of net moveable estate (if there are children) or one half (if not). Children collectively share one third of net moveable estate (if there is a surviving spouse) or one half (if not).
Which intestacy rules apply if I have property in both Scotland and England?
For heritable property (land and buildings), the law of the jurisdiction where the property is located applies. For moveable property (cash, investments, personal items), the law of the deceased's domicile applies. If you were domiciled in England but own a Scottish property, English intestacy governs your moveable estate but Scottish law governs the land. This creates complexity — a will is strongly advisable for anyone with cross-border assets.
Does Scotland have a residence nil-rate band equivalent for IHT?
IHT is a reserved matter and applies across the entire UK — so the residence nil-rate band (£175,000) and nil-rate band (£325,000) apply equally in Scotland as in England and Wales. IHT is administered by HMRC regardless of where in the UK the deceased lived. The main Scottish distinction is in succession law (who inherits), not in IHT itself.
Based in England or Wales? Make Your Will Today
WillSafe UK covers England and Wales. If you are domiciled here, our DIY will kit lets you write a legally valid will for £39.99 — protecting your partner, children, and chosen beneficiaries in a way the intestacy rules never will.
Get the WillSafe Kit →Related Articles
- Intestacy rules England and Wales 2026
- Intestacy and cohabiting partners (England)
- What happens if you die without a will?
- Domicile and inheritance
- Bona vacantia — when the Crown inherits
This article is for general information only. Scottish succession law is complex — always seek advice from a Scottish solicitor for estates with Scottish assets or a Scottish domicile. WillSafe UK kits are for England and Wales only.