Legal Rights in Scotland
What 'legal rights' under Scots law are, who may claim them, and how they may sit alongside the wishes you set out in your will.
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What are legal rights?
In Scotland, certain close family members may be entitled to a fixed share of part of your estate, known as legal rights, under the Succession (Scotland) Act 1964. These rights exist regardless of what your will says, so a surviving spouse, civil partner or child may be able to claim them even if your will leaves your estate elsewhere.
The Scots-law terms you may see
- Legitim: the legal right share that may be available to children
- Jus relictae: the legal right share that may be available to a surviving wife
- Jus relicti: the legal right share that may be available to a surviving husband or civil partner
Why you may have seen this
If your will is governed by Scots law and you have a surviving spouse, civil partner or children, the allocation step shows a short note about legal rights. It is there for information only. It does not stop you continuing or change how you allocate your estate.
Who may claim
Legal rights generally arise for the people closest to you. Whether a claim can be made, and how much it might be, depends on your family circumstances and the make-up of your estate at the time.
- A surviving spouse or civil partner: may be entitled to a share of your moveable estate
- Children: may be entitled to a share between them, and a grandchild may step into a deceased parent's place
Moveable vs heritable estate
Legal rights apply to your moveable estate: broadly, things other than land and buildings, such as money, savings and personal possessions. Heritable property, such as your home, is treated differently. How your estate divides between the two can affect any claim.
How legal rights and your will fit together
Your will still records your wishes for your whole estate. Legal rights sit alongside it: an eligible family member may choose to claim their legal right share instead of, or in addition to, what your will leaves them, and they may also choose not to claim at all. If a claim is made, it could affect how the rest of your estate is distributed.
What this means as you allocate
- Keep planning as normal: record who you want to receive what; the note is informational
- A claim is a choice: eligible family members decide whether to claim their legal right share
- The outcome can vary: it depends on your circumstances and the value of your estate
What your Scots-law will says about this
A will generated for Scotland uses Scots-law wording rather than the England and Wales wording. Two differences relate to legal rights. The will includes a clause recording that legal rights (jus relictae, jus relicti and legitim) may be claimed over your moveable estate whatever the will provides. Where it fits your circumstances, the will may also carry an invitation clause asking those entitled to consider giving up their legal rights so your wishes can be carried out as written. Such an invitation is not binding on anyone, and whether to accept it remains their choice.
A note on advice
This page is general information, not legal or tax advice, and the rules can be detailed and fact-specific. The outcome in your case may differ. Consult a qualified professional about your circumstances. Every will on Orchard72 is reviewed by an independent qualified will writer or solicitor of your choice before it can be finalised.
Where to go next
Legal rights are one part of how your estate may pass. You may also find these guides useful:
- Specific gifts (opens in a new tab): how to leave named assets to particular people
- Trusts in your will (opens in a new tab): how a trust can protect the people who matter to you
- Professional review (opens in a new tab): how your will is reviewed before it is finalised
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