Comparison · Estate Planning · 2026
Intestacy Rules: Scotland vs England UK 2026 (Dying Without a Will)
Dying without a will triggers a completely different set of default rules depending on whether Scots law or English law applies — and the difference matters most for cohabiting partners, who are treated very differently by the two systems. This guide compares both for 2026.
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TL;DR - 30-Second Summary
- - England & Wales: spouse gets chattels + statutory legacy + half remainder if there are children
- - Scotland: prior rights (home, furniture, cash) then legal rights (share of moveable estate)
- - Neither gives cohabiting partners automatic rights — Scotland has an explicit court application route
- - Scottish legal rights cannot be fully overridden even by a will; English intestacy generally can be
Side by Side
| Feature | England & Wales | Scotland |
|---|---|---|
| Structure | Statutory legacy + share of remainder | Prior rights then legal rights |
| Covers property/land? | Yes, part of whole estate | Prior rights only; legal rights exclude land |
| Cohabiting partners | No automatic right; 1975 Act claim possible | No automatic right; explicit s.29 court claim route |
| Can a will override it? | Generally, yes | Legal rights survive even a will |
Verdict
The single most important message in both systems is the same: dying without a will hands control of your estate to a default legal formula rather than your own wishes, and this hits cohabiting (unmarried) partners hardest, since neither system gives them automatic rights. Writing a valid will is the only reliable way to ensure a partner, stepchildren, or specific individuals receive what you intend, particularly in Scotland where even a will cannot fully override a spouse's or child's statutory legal rights. Take advice from a solicitor qualified in the relevant jurisdiction when making or reviewing a will.
Frequently Asked Questions
What happens under English intestacy rules if I die without a will?
Under the rules for England and Wales, a surviving spouse or civil partner receives all personal belongings, a statutory legacy (a fixed cash sum, reviewed periodically by the government), and half of anything left over if the deceased also had children — the other half is shared among the children. If there are no children, the spouse or civil partner inherits the entire estate. Unmarried partners have no automatic entitlement at all under these rules.
How does Scottish intestacy work differently?
Scotland uses a two-stage system under the Succession (Scotland) Act 1964. First, "prior rights" give the surviving spouse or civil partner rights to the family home (up to a value cap), furniture and plenishings (up to a value cap), and a cash sum from the estate. Second, "legal rights" then give the spouse/civil partner and children a further fixed share of the remaining moveable estate (cash, investments, personal property, but not land/property) — a spouse with children gets a smaller legal rights share than a spouse without children, since the children also have a legal rights claim.
Do cohabiting (unmarried) partners have any automatic inheritance rights?
Neither system gives cohabiting partners automatic intestacy rights in the same way as a spouse or civil partner. However, Scotland has an explicit statutory route: under section 29 of the Family Law (Scotland) Act 2006, a surviving cohabitant can apply to the court for a discretionary award from the estate within six months of death. In England and Wales, a cohabitant (or other dependant) can bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975 if they were being maintained by the deceased, but this is a broader family-provision claim rather than a specific cohabitants' route, and time limits and criteria differ.
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What is the difference between "prior rights" and "legal rights" in Scotland?
Prior rights are satisfied first, from the whole estate (including heritable property such as the family home), and are capped at set value limits. Legal rights are calculated afterward, only from the remaining moveable estate (not property/land), and give a fixed fractional share to the spouse/civil partner and children regardless of what a will might otherwise say — legal rights cannot be fully disinherited even by a valid will in Scotland, unlike in England where a will generally overrides intestacy entirely.
Can a will completely override the default rules in both nations?
In England and Wales, a valid will generally overrides the intestacy rules entirely, subject only to potential 1975 Act claims by dependants who feel inadequately provided for. In Scotland, a will cannot fully remove a spouse's or child's "legal rights" to a share of the moveable estate — they can choose to claim their legal rights instead of what the will leaves them, which is a distinctive protection not present in English law.
What is the current statutory legacy amount in England and Wales?
The statutory legacy for a surviving spouse or civil partner (where there are also children) is a fixed amount set by the government and reviewed periodically — it was last increased in January 2023. Because this figure is reviewed from time to time, always check the current statutory legacy on gov.uk rather than relying on a previous year's figure when assessing an estate.
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Disclaimer: This comparison is general educational information and not legal advice. Statutory legacy amounts and value caps are reviewed periodically and may change. Refer to gov.uk and mygov.scot and consider advice from a solicitor.