England vs Scotland: How the Inheritance Rules Differ If You Die Without a Will
Scotland and England have two completely different sets of rules for what happens to your estate if you die without a will. If you live near the border, have family on both sides, or have ever moved between the two countries, this matters more than you might think.
Why the rules are so different
Scotland has its own legal system, entirely separate from the law of England and Wales. Scottish succession law has its roots in Roman law and has developed independently for centuries. The Succession (Scotland) Act 1964 — the main piece of legislation — reflects that distinct tradition.
The result is that if two people die on the same day, one in Carlisle and one in Gretna Green, the rules governing their estates can be completely different — even if their families, assets, and circumstances are identical.
The biggest practical differences explained
1. How a spouse inherits
In England, a surviving spouse receives:
- All personal possessions
- The first £322,000 of the estate (the statutory legacy, current as of June 2026)
- Half of anything above that threshold
Children share the other half of anything above the threshold.
In Scotland, a surviving spouse's entitlement works in stages:
- Prior rights first — a right to the family home (up to £473,000), contents (up to £29,000), and a cash sum (£50,000 if there are children; £89,000 if not)
- Legal rights next — a share of the moveable estate (one third if there are also children; one half if not)
The Scottish system can be more generous to a spouse in some situations, and less so in others — it depends heavily on how the estate is made up and what it is worth.
2. Children's rights — the crucial difference
This is where the two systems diverge most significantly.
In England, children only inherit under the intestacy rules if the estate exceeds the £322,000 spousal threshold. A modest estate goes entirely to the spouse, and children receive nothing automatically. A will can leave children whatever the deceased chooses — or nothing at all.
In Scotland, children have an inalienable right to a share of the moveable estate called legitim. This right exists regardless of what a will says, and regardless of whether the estate is large or small. A Scottish parent cannot simply cut their children out, even with a carefully drafted will.
If a child is left something in a will, they must choose between accepting their inheritance under the will or claiming their legitim — they cannot have both. But the right to choose belongs to the child, not the parent.
3. Unmarried partners — similar problem, different options
In both countries, an unmarried partner has no automatic right to inherit. The common law spouse myth is just as false in Scotland as it is in England.
However, Scotland offers a route England does not: an unmarried cohabitant can apply to the court for a share of the estate under the Family Law (Scotland) Act 2006. This is not guaranteed, must be made within six months of the date of death, and can be contested. But the option exists.
In England, an unmarried partner has no equivalent right. They can bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975 if they were financially dependent on the deceased, but this is a different and more limited route.
In both countries, the only certain protection is a valid will.
4. Can you override the rules with a will?
In England, broadly yes. A will gives you almost complete freedom to decide who inherits what. You can include or exclude children, provide for an unmarried partner, and structure things as you see fit. Others can challenge a will, but the starting point is that your wishes prevail.
In Scotland, a will cannot override legal rights — the entitlement of a spouse and children to a share of the moveable estate. These rights sit outside the will entirely. A well-advised Scottish will can offer beneficiaries choices and alternatives, but it cannot simply remove legal rights.
This means that in Scotland, will-drafting requires careful thought about the moveable estate and the interplay between what is left in the will and what legal rights could be claimed instead.
5. What happens if you have assets in both countries?
This is where things get genuinely complicated.
Generally speaking:
- Land and buildings are governed by the law of the country where they are situated
- Moveable estate (money, investments, personal possessions) is generally governed by the law of the country where the deceased was domiciled — broadly, where they considered their permanent home to be
So if you are domiciled in Scotland but own a property in England, Scottish succession law will apply to your moveable estate, but English property law will apply to the English property.
If you live near the border, have recently moved, or own property in both countries, professional advice is particularly important. The interaction between the two systems is not always straightforward.
What about Wales and Northern Ireland?
Wales follows the same rules as England under the Administration of Estates Act 1925.
Northern Ireland has its own intestacy rules, which are similar to England and Wales but not identical. They are not covered in detail here.
The bottom line
If you live in Scotland, the English intestacy rules do not apply to you — and vice versa. The systems are different enough that assumptions based on one can lead to real misunderstandings about the other.
In both countries, however, the conclusion is the same: the intestacy rules are a blunt instrument. They cannot reflect your relationships, your family dynamics, or your wishes. They simply apply a default formula — and the results can surprise, and sometimes devastate, the people left behind.
A will is the only way to take control of what happens.
At Your Wills Team, we advise clients across England and Scotland. If you're not sure which rules apply to you — or you simply want to make sure your wishes are properly recorded — we offer a free 30-minute call with no obligation.
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