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Prior Rights in Scotland

Prior rights are a Scotland-specific protection for a surviving spouse or civil partner when someone dies without a will. They give the survivor a first claim on the family home, its contents, and a fixed cash sum, before anyone else inherits a penny.

This plain-English guide explains exactly what prior rights cover, the current statutory amounts, who qualifies, and the single most important point most people miss: prior rights only apply on intestacy. A valid will dealing with the whole estate switches them off entirely.

If you simply want to put your own will in place, you can make a Scottish will online here for a fixed price. Otherwise, read on and take your time.

Contents

1. What prior rights are (in plain English)

Prior rights are statutory entitlements created by the Succession (Scotland) Act 1964. They sit at the very top of the queue when someone dies without a will in Scotland. Before children inherit, before parents inherit, before any other relative gets a share of the estate, the surviving spouse or civil partner is entitled to take the prior rights first.

There are three of them, set out in sections 8 and 9 of the 1964 Act:

  • The dwelling house the survivor was living in, up to a capped value
  • The furniture and plenishings of that home, up to a capped value
  • A cash financial provision, the size of which depends on whether the deceased left children

If you would prefer a wider overview of what happens when no will exists, see our guides on intestacy in Scotland and what it means to die without a will in Scotland. This guide focuses on prior rights specifically.

2. The three prior rights and current values

The three prior rights, the section of the Act that creates each one, and the current statutory amounts are set out below.

  • Prior right to the dwelling house — section 8(1): the surviving spouse or civil partner takes the home (or its value) in which they were ordinarily resident, up to £473,000. If the home is worth more than that, the survivor receives £473,000 in value rather than the property itself.
  • Prior right to plenishings — section 8(3): the furniture and plenishings of that home, up to £29,000.
  • Prior right to financial provision — section 9: a cash sum of £50,000 if the deceased left issue (children or grandchildren), or £89,000 if there are no issue.

Important caveat on the figures. The current amounts were set by the Prior Rights of Surviving Spouse and Civil Partner (Scotland) Order 2011, which came into force on 1 February 2012. They have not been updated since. Scottish Ministers have power under section 9A of the 1964 Act to revise the figures by statutory instrument at any time, so before relying on these amounts in a real estate, check the latest position on legislation.gov.uk in case a more recent order has been made.

For context, the threshold history is:

  • 1999: £130,000 / £22,000 / £35,000 / £58,000
  • 2005: £300,000 / £24,000 / £42,000 / £75,000
  • 2012 (current): £473,000 / £29,000 / £50,000 / £89,000

3. Prior rights vs legal rights — the distinction that matters

This is the point most people get wrong. Scotland has two different protections, and they are not the same thing.

  • Prior rights apply only on intestacy. They are extinguished by a valid will dealing with the whole estate.
  • Legal rights (jus relicti, jus relictae, and legitim) apply whether or not there is a will. A surviving spouse, civil partner, or child can claim against the moveable estate even if the will leaves them out.

The two are taken in sequence. On intestacy, prior rights come first. Legal rights are then calculated on what remains of the moveable estate. Only after both have been satisfied does the “free estate” fall to be distributed under the standard intestacy rules.

4. The intestacy waterfall: order of distribution

When a person dies intestate in Scotland, the estate is paid out in this fixed order:

  1. Debts, expenses, and inheritance tax are paid first.
  2. Prior rights are taken by the surviving spouse or civil partner — dwelling house, plenishings, then cash provision.
  3. Legal rights are claimed (if elected) by the surviving spouse or civil partner and by any children, calculated from the moveable estate that remains after prior rights.
  4. The free estate passes under the order set out in section 2 of the 1964 Act — children first, then a surviving spouse or civil partner where there is no prior relative, then parents and siblings, then more remote relatives.

In a typical Scottish family — a married couple with a home worth less than £473,000, modest savings, and grown children — prior rights alone often consume the whole estate. The surviving spouse takes the house, the contents, and the cash. That is the intended effect of the legislation.

5. Who qualifies (and who does not)

The survivor must be one of the following:

  • A surviving spouse, including same-sex spouses (Marriage and Civil Partnership (Scotland) Act 2014)
  • A surviving civil partner — brought within ss.8 and 9 of the 1964 Act by the Civil Partnership Act 2004, with effect from 5 December 2005

Cohabitants do not get prior rights. An unmarried partner, no matter how long the relationship lasted, has no automatic statutory entitlement on intestacy. The only route is a court application under section 29 of the Family Law (Scotland) Act 2006, with a hard deadline:

  • The application must be made within 6 months of the date of death
  • The court has discretion over whether to award anything, and how much
  • Any award cannot exceed what the survivor would have received as a spouse or civil partner

The 6-month limit is the most common way cohabitants lose their right to claim. If you live together but are not married or in a civil partnership, read our guide on cohabiting couples and wills in Scotland, and consider making wills — section 29 is a court process, not a guaranteed entitlement.

6. Why a will changes everything

Prior rights are a safety net for families who never got round to making a will. They are not a substitute for one.

If you make a valid will dealing with the whole of your estate, prior rights do not apply. Both s.8 and s.9 of the 1964 Act begin “where a person dies intestate” — they only switch on when there is no will. With a valid will, you decide who gets the home, the contents, the cash, who looks after children under 16, and who acts as executor.

The statutory thresholds become irrelevant. The only entitlement that survives a valid will is legal rights; the prior rights regime, with its capped amounts and rigid order, is replaced by your own instructions.

A straightforward Scottish will takes around ten minutes to complete online and removes that uncertainty for good.

7. When to speak to a Scottish solicitor

This guide is general information, not legal advice. It is worth speaking to a Scottish solicitor before relying on the rules in any of these situations:

  • The home is worth significantly more than £473,000, or the estate includes commercial property or business assets
  • Blended families where prior rights and children from a first relationship interact
  • The deceased was domiciled outside Scotland but owned Scottish property
  • Partial intestacy — a will exists but does not cover the whole estate
  • You are a cohabitant approaching the 6-month section 29 deadline

For routine estates and routine wills, a fixed-fee online service is usually all that is needed.

Quick FAQs about prior rights in Scotland

Do prior rights apply if there is a valid will?

No. Prior rights apply only on intestacy. A valid will dealing with the whole estate replaces them entirely.

What is the maximum value of the dwelling house under prior rights?

£473,000, set by SSI 2011/436 and in force since 1 February 2012. The figure has not been updated since. Always confirm the current statutory amount on legislation.gov.uk before relying on it.

Do civil partners get prior rights?

Yes. Civil partners are treated the same as spouses under sections 8 and 9 of the 1964 Act, following amendments made by the Civil Partnership Act 2004.

Do cohabiting partners get prior rights?

No. Cohabitants have no automatic prior rights. They may apply to court under section 29 of the Family Law (Scotland) Act 2006, but only within 6 months of the death.

What is the difference between prior rights and legal rights?

Prior rights apply only on intestacy and cover the home, plenishings, and a cash sum. Legal rights apply whether or not there is a will, and are a fixed share of the moveable estate.

Ready to put your own will in place?

If your situation is reasonably straightforward, you can start your Scottish will online here. The process takes around ten minutes, and your completed Will Pack is emailed to you within two business days.

If you have any questions at all, you can contact us — we’re here to help.