Can you leave your children, spouse or civil partner, out of your Will in Scotland?

Family relationships can be challenging, and parents and children or spouses may become estranged for a wide variety of reasons. As a result, you could be wondering whether they may still be able to inherit from your estate. In this article, we look at what is known in law as ‘legal rights’ and how they might apply in different circumstances.

Can you leave your spouse or children out of your Will?

While you can, of course, fail to make provision for your spouse or children in your Will, they may still be able to inherit from your estate under what is known as ‘legal rights’.

Legal rights: explained

Under the law in Scotland, surviving spouses and children of the deceased are entitled to a share in their estate, regardless of whether the person died with or without a Will – known as ‘legal rights’.

Only married partners are entitled to legal rights, even if you have lived with a partner for a long time. It is, however, possible for a cohabiting partner to make an application to the court for a share in their deceased partner’s estate.

What is the reasoning behind legal rights?

Legal rights are designed to ensure that a person leaves part of their estate to the people they had closest ties to and uphold the principle of family protection.

Legal rights of spouses and civil partners

Your spouse or civil partner has a legal right to inherit from your estate regardless of whether they are named in your Will. Even if you are separated from your spouse or civil partner, they will be able to claim legal rights until divorce/dissolution or until you discharge legal rights as part of a separation agreement.

However, where they are named in your Will, they may choose between legal rights and what you have left them in your Will – they are not entitled to both.

The legal rights of a spouse or civil partner are either:

• • half of your moveable estate where you have no surviving childrenOR

• • one third of your estate where you have surviving children

Legal rights of children

Legal rights apply to not only your biological children but also any adopted children, and they will not be required to make an application to the court – legal rights are automatic. Children are entitled to either:

• • one half of your movable estate between them, where you have no surviving spouse or civil partner
  • one third of your moveable estate between them where there is a surviving spouse or civil partner