In Your Memory - Legal Rights in Scotland - By Katie Deans and Cath Healy

Can I disinherit my children?

There are many reasons why a parent may choose not to include their children in their Will. This could be due to estrangement, broken relationships, or for inheritance tax purposes.

If you live in Scotland, not including your children in your Will does not mean they will not benefit from your estate (i.e. any money, property or possessions you own). No matter what your Will says, you cannot disinherit your children as they are entitled to claim their legal rights on your estate. This, however, does not mean you must include them in your Will.

Legal rights claim

If you have a surviving spouse or civil partner, your children will be entitled to 1/3^rd of the net moveable estate split equally among however many children you have.

If you do not have a surviving spouse or civil partner, your children will be entitled to ½ of the net moveable estate, split equally among them.

It is important to note that whilst your children are entitled to their legal rights, they can choose whether or not to claim this.

What does ‘moveable estate’ consist of?

Children are only entitled to claim against the ‘moveable’ element of your estate. This consists of everything in your estate except your land and property. This includes, but is not restricted to, jewellery, stocks and shares, bank accounts, cash and investments. 

What would this look like in practice?

If you left a Will naming your spouse as your sole beneficiary but had three children, the legal rights claim on your estate would look as follows:

By way of an example, if your net moveable estate after all debts, outlays and expenses of administration of the estate was worth £90,000, your children would be entitled to £10,000 each.

However, if you were not survived by a spouse, and you left everything per your Will to your sister, your three children would be entitled to £15,000 each.

Can I disinherit my grandchildren?

If any of your children were to predecease you, and they had children of their own, your grandchildren are entitled to claim their parent’s legal rights claim on your estate. Reverting to our above example, if one of your three children had predeceased you, your grandchild would be entitled to either £10,000 (if you were survived by a spouse) or £15,000 (if not) of your estate. If your child had multiple children, the legal rights entitlement would be split equally among them.

It is important to note that this only applies where your children have predeceased you, otherwise your grandchildren cannot claim legal rights on your estate.

How will my estate be distributed if I do not have a Will?

‘Intestacy’ is the term used to describe how your estate will be divided on your death if you do not leave a valid Will.

The rules of Intestacy in Scotland are governed by the Succession (Scotland) Act 1964, but as of April 2024, subsequent amendments have been made by the Trusts and Succession (Scotland) Act 2024.

If you die without a valid Will in Scotland, your estate will be distributed as follows:

1. Prior Rights: These are the entitlements of a surviving spouse or civil partner. They have the first claim on the deceased's estate, which includes:

• • The deceased's interest in the shared home up to a specified value (currently £473,000).
  • Furniture and plenishings of the home up to a specified value (currently £29,000).
  • A financial provision of up to £50,000 if there are children, or £89,000 if there are no children.2.  

2. Legal Rights: After prior rights are satisfied, the surviving spouse or civil partner and the deceased's children (or their descendants) are entitled to legal rights out of the moveable estate (all assets except land and property).

The surviving spouse or civil partner is entitled to:

• • One-third of the moveable estate if there are surviving children.
  • One-half of the moveable estate if there are no surviving children.

The children are entitled to:

• • One-third of the moveable estate if there is a surviving spouse or civil partner.
  • One-half of the moveable estate if there is no surviving spouse or civil partner.

3. Free Estate:  The free estate refers to the remaining estate after prior and legal rights are distributed. The rules of intestacy surrounding the free estate have recently been updated by the Trusts and Succession (Scotland) Act 2024 as follows:

• • Spouses and Children: If you die survived by a spouse or civil partner, they will now rank second in the line of succession to your “free estate”. Your children will still rank first. This change sees spouses and civil partners rank ahead of parents and siblings where they previously ranked below. Therefore, if you die survived by a spouse or civil partner but no children, your spouse or civil partner will now inherit your entire estate under the new Act.
  • Other Relatives: If there are no immediate family members, the estate passes to other relatives in a specified order of priority: parents, siblings, nieces and nephews, grandparents, uncles and aunts, and so on.
  • Crown: If no relatives can be found, the estate passes to the Crown as ultimus haeres.

How can Dallas McMillan Help?

At Dallas McMillan, we can help you create a Will that is personal to you, to assure that your estate is distributed exactly how you wish. If there are certain family members that you would not want to benefit from your estate, you will face no pressure to include them, and we will guide you as to the potential claims certain family members could make upon your death.

If you have any questions about preparing or updating your Will, please contact This email address is being protected from spambots. You need JavaScript enabled to view it. or call 0141 333 6750 and ask to speak to a member of our Private Client Department.