People arrive at this question for serious reasons. Estrangement, a second family, one child who provided years of care while another did not, a child whose circumstances make an inheritance unwise. Those are real situations and they deserve a straight answer rather than a warning.

The straight answer is that Scots law does not permit a parent to disinherit a child outright, and that any guidance telling you otherwise is describing the law of England and Wales.

Why English guidance is wrong here

In England and Wales, testamentary freedom is the starting point. A parent may in principle leave a child nothing, and the child’s remedy is to apply to the court under the Inheritance (Provision for Family and Dependants) Act 1975 for reasonable financial provision. That application is discretionary. It may fail. An adult child in comfortable circumstances often does fail.

Scotland does the opposite. There is no discretionary application, because there is no need for one. Certain family members have legal rights, which arise automatically on death, do not depend on need, do not depend on the court’s view of the relationship, and cannot be excluded by the will. The child does not have to persuade anybody of anything. They simply have to claim.

What legal rights actually are

Legal rights are fixed fractions of one part of your estate. Two things determine the size of the claim.

The fraction. If you are survived by a spouse or civil partner as well as children, your children are together entitled to one-third. If you leave children but no surviving spouse or civil partner, they are together entitled to one-half. The children’s share is divided equally between them, and a grandchild steps into the place of a child who died before you.

Your spouse or civil partner has an equivalent claim of their own, on the same fractions and for the same reason. It is called jus relictae for a widow and jus relicti for a widower. The children’s claim is called legitim.

The pot the fraction is taken from. This is where the real answer lies, and it is the point most pages skip over in a single clause.

Legal rights do not touch your house

Legal rights attach only to your net moveable estate. Moveable estate is everything that is not land or buildings: bank accounts, investments, shares, the car, furniture, jewellery, the balance of a business interest. Net means after debts and funeral expenses have been paid.

Heritable property — your house, your flat, your land — is entirely outside the calculation. A child’s legal rights claim cannot reach it, however large it is and however small the rest of the estate.

Read that alongside the fact that for most families in Scotland the house is the overwhelming majority of what there is, and the picture changes considerably. A parent with a house worth three hundred thousand pounds and forty thousand pounds in savings, survived by two children and no spouse, is looking at a legal rights claim of one-half of forty thousand pounds, shared between two children — ten thousand pounds each. The house passes exactly as the will directs.

So the honest formulation is not that you cannot leave a child out of your will. It is that you cannot leave a child out of your moveable estate, and that the strength of their position depends entirely on the shape of your assets rather than on the strength of your wishes.

The choice you are forcing on your child

There is a second mechanism that does far more work in practice than most people realise, and it works in the will-maker’s favour.

A person cannot both accept a legacy under the will and claim their legal rights. They must elect between the two. The old Scottish phrase for this is that you may not approbate and reprobate — you cannot take the benefit of a deed while rejecting the parts of it you dislike.

That gives a will-maker a real and legitimate tool. A parent who wants to reduce what a particular child receives, without a fight, can leave that child a legacy calculated to be worth somewhat more than their likely legal rights claim. The child then faces a choice between a certain, larger sum under the will and a smaller, contested claim outside it. Most people take the certain sum, and the estate is not litigated.

It is worth being clear-eyed about what this is. It is not disinheritance. It is buying the peace of the estate at a known price, which is frequently the better outcome for everybody, including the children who are not in dispute.

Who cannot claim

Legal rights belong to a narrow class, and it is narrower than family feeling suggests.

Grandchildren claim only by representation, standing in the place of a parent of theirs who predeceased you. A grandchild whose parent is alive has no claim.

Stepchildren have no legal rights at all unless they were legally adopted. This surprises people in second families and it cuts both ways: a stepchild you wish to provide for must be provided for expressly in the will, because nothing will reach them otherwise.

A cohabiting partner has no legal rights. There is no such thing as a common law wife or husband in Scotland. Where there is a will, a cohabitant gets whatever the will gives them and nothing more. Where there is no will, a surviving cohabitant may apply to the court under section 29 of the Family Law (Scotland) Act 2006 — but only within six months of the death, and the award is entirely at the court’s discretion.

Parents and siblings have no legal rights in your estate.

An adopted child has exactly the same legal rights as a biological child. So does a child born outside marriage. So does a child you have not seen for thirty years.

How long a child has to claim

Twenty years. Legal rights are expressly excluded from the five-year short negative prescription by schedule 1 of the Prescription and Limitation (Scotland) Act 1973, which leaves them running under the twenty-year long negative prescription in section 7 of the same Act, from the date of death.

This is a long time, and it is a live risk for executors rather than a theoretical one. An executor who distributes an estate without accounting for a legal rights claim may find themselves personally answerable to the claimant years afterwards. If you are an executor and you know there is a child who has not been mentioned, that is a matter to take advice on before you pay anybody anything, not after.

What you can legitimately do

Setting aside the things that do not work, several things do.

You can leave your heritable property wherever you wish, and it is beyond the reach of a legal rights claim. You can make lifetime gifts, subject to the tax rules and to the general law on transactions intended to defeat claims. You can use the election point above to make a legacy the more attractive option. You can name a different person entirely as your executor, so that the administration is not in the hands of somebody you are in dispute with. And you can leave a clear, dated letter of wishes explaining your reasoning — which has no legal force at all, but which is frequently the thing that stops a family disagreement becoming a court action.

What you cannot do is write a sentence in a will that removes a child’s legal rights. There is no such sentence.

If you are the child who was left out

You do not need the executor’s permission and you do not need to prove anything about the relationship. You are entitled to ask the executor for an account of the moveable estate, and you are entitled to claim your fraction of it. You will have to elect between that and anything the will actually leaves you, and that election is worth taking advice on before you make it, because it cannot be unwound.

One thing is worth knowing before you start. Legal rights are a claim for a sum of money, not for a particular item. You cannot use them to obtain the house, or your mother’s ring, or anything else you have in mind. They give you a fraction of a value, and the executor decides how to raise it.

Sources

• What to do after a death in Scotland — legal rights, Scottish Government
• Succession (Scotland) Act 1964, legislation.gov.uk
• Prescription and Limitation (Scotland) Act 1973, section 7, legislation.gov.uk
• Prescription and Limitation (Scotland) Act 1973, schedule 1, legislation.gov.uk
• Family Law (Scotland) Act 2006, section 29, legislation.gov.uk
• Succession (Scotland) Act 2016, legislation.gov.uk

This page is general information about the law of Scotland and is not advice on your circumstances. Estate planning where a family member is to be excluded is one of the areas where general information is least safe to act on. Take advice on your own case.