Can you disinherit your children in Scotland? Legal rights explained (UK)

26 August 2026 · Inherit Vault

You can write your children out of your will in England and Wales. In Scotland you can't, and no amount of careful drafting will fix that. Legal rights are exactly what they sound like, and they sit above whatever the will says.

The will isn't the last word

Under Scots law a surviving spouse or civil partner and the children can claim legal rights out of the estate whatever the will says. HMRC's own manual puts it about as bluntly as HMRC ever puts anything: they cannot be denied their legal rights by any provision in the deceased's will. The reasoning is that anything in a will only takes effect after legal rights have been met. So cutting a child out in Scotland isn't a drafting problem you can solve by finding a cleverer solicitor. It's just not on the menu.

Legal rights, in normal words

Three old names, one idea. Jus relictae is the surviving wife's share, jus relicti the surviving husband's, and legitim, still called the bairn's part, is the children's. Civil partners get the equivalent under section 131 of the Civil Partnership Act 2004. Whatever's left once those claims are settled is called the dead's part, and that's the only slice your will actually controls.

The share depends on who survives you

If you leave a spouse or civil partner and children, the moveable estate splits in thirds: one third to the spouse, one third shared among the children as legitim, one third as dead's part. Leave a spouse and no children and it's halves. Leave children and no spouse, also halves. The children's third is divided equally between them, however many there are, and it doesn't matter whether they were close to you or hadn't spoken to you in years.

Here's the catch, it only touches moveable estate

Legal rights can only be claimed out of the moveable estate. Moveable is money, shares, the car, the furniture, whatever's inside the ISA. Heritable is land and buildings. Your house is heritable, so legitim can't reach it. This is why Scottish estates that look enormous on paper often produce surprisingly small legal rights claims, because most of the value is sitting in a property that's simply out of scope. It's also the one lever that actually exists here: what you own changes what can be claimed, in a way that the wording of your will never will.

Prior rights come first, and they're generous

If there's no will at all, prior rights are settled before anything else, under sections 8 and 9 of the Succession (Scotland) Act 1964. The values have been unchanged since 1 February 2012. The surviving spouse or civil partner takes the house they lived in, up to £473,000 in value, furniture up to £29,000, and a cash sum of £50,000 if there are surviving children or £89,000 if there aren't. Prior rights are paid out first and they shrink the pot that legal rights are then worked out on. On an ordinary estate they can quietly swallow the whole thing before the children's third is even calculated.

A claim can be given up, and usually is

Legal rights aren't compulsory, and most of the time nobody claims them. A child can discharge their claim, either during the parent's lifetime or after the death. The usual arrangement is a straight choice: take what the will leaves you, or take legitim, but not both. Where the will is more generous than the legal rights would be, taking the legacy is obviously the better deal, and the executor will ask for a signed discharge before winding things up.

Twenty years, and then it's gone

A legal rights claim prescribes after twenty years under Scotland's long negative prescription. Leave it longer than that and it's lost completely. Twenty years sounds like plenty, until you notice when these claims actually surface: usually when a second parent dies and somebody finally reads the paperwork from the first estate.

Confirmation, not probate

Scotland doesn't grant probate. The equivalent is confirmation, granted by the sheriff court. If the whole estate is worth £36,000 or less it counts as a small estate, and the sheriff clerk's office will sit down with you and help prepare the inventory. There's no statutory court fee for issuing confirmation in a small estate. Since 4 March 2016 you also don't need a bond of caution where the sheriff clerk prepared the form, though you still do if a solicitor prepared it.

Divorce doesn't leave your will alone either

Section 1 of the Succession (Scotland) Act 2016 deals with the other thing people assume is handled. Divorce, dissolve a civil partnership or have a marriage annulled after making your will, and any provision in favour of the ex is read as though they had died before you, unless the will expressly says otherwise. It applies to deaths on or after 1 November 2016. Appointing them as your executor falls away the same way.

None of this is obscure or contested. The Scottish rules are old, thoroughly documented and completely unmoved by what a will says. What actually catches families out is smaller and more practical: not knowing which parts of the estate are moveable and which are heritable, or discovering that a legitim claim from twenty years ago was never discharged and nobody can find the paperwork. That's a records problem rather than a legal one. A clear list of what's owned, which side of the moveable line it falls on, and who has already signed what, is what turns a twenty-year-old question into a five minute answer.

Sources

Succession (Scotland) Act 1964, sections 8 and 9, prior rights: https://www.legislation.gov.uk/ukpga/1964/41/section/8 HMRC Inheritance Tax Manual IHTM12211, prior rights values in force: https://www.gov.uk/hmrc-internal-manuals/inheritance-tax-manual/ihtm12211 HMRC Inheritance Tax Manual IHTM12221, legal rights and the dead's part: https://www.gov.uk/hmrc-internal-manuals/inheritance-tax-manual/ihtm12221 HMRC Inheritance Tax Manual IHTM12226, twenty year time limit: https://www.gov.uk/hmrc-internal-manuals/inheritance-tax-manual/ihtm12226 Scottish Courts and Tribunals Service, small estates and confirmation: https://www.scotcourts.gov.uk/taking-action/dealing-with-a-deceaseds-estate-in-scotland/small-estates/ Succession (Scotland) Act 2016, section 1, effect of divorce on a will: https://www.legislation.gov.uk/asp/2016/7/section/1

Leave your family a map, not a mystery.

Inherit Vault is a digital inheritance vault: every account, policy, and instruction your family will need, encrypted so only you can read it, released to your executor when it genuinely matters.

Start your 14 Day Free Trial

Questions first? Read the FAQ