Legal rights in Scotland and inheritance tax

In Scotland a surviving spouse or civil partner and the children have legal rights to a fixed share of the deceased’s moveable estate, which a will cannot take away. Whatever the spouse actually receives is covered by the spouse exemption, but legitim taken by the children is usually chargeable, so a claim can increase the Inheritance Tax. A renunciation within two years of the death can be treated as a variation; outside that window, giving up legal rights can be a gift by the person who gives them up.

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What are legal rights?

Legal rights are long standing rights in Scots law that vest automatically in a surviving spouse or civil partner and in the children when someone dies, whether or not there is a will (IHTM12221). They are:

jus relicti or jus relictae, the right of a surviving husband or wife, with equivalent rights for a civil partner under section 131 of the Civil Partnership Act 2004;
legitim, or bairn’s part, the right of the children.

The rest of the moveable estate, which the deceased was free to leave by will, is the dead’s part. HMRC’s manual sets out the division:

Survivors	Spouse or civil partner	Legitim	Dead’s part
Spouse or civil partner and children	One third	One third	One third
Spouse or civil partner, no children	One half	None	One half
Children, no spouse or civil partner	None	One half	One half

A will cannot defeat legal rights, because testamentary provisions only take effect after legal rights have been met (IHTM12221). Children include adopted children but not stepchildren, and grandchildren can claim by representation where their parent died first (IHTM12252). A divorced spouse or former civil partner has no legal rights.

Which part of the estate do legal rights come from?

Only moveable estate. Heritable property means buildings and other real property, crops and bonds secured on real property; moveable property is everything that is not heritable, such as money, investments and belongings (IHTM42700). A house is therefore outside the legal rights calculation, though it is still in the estate for Inheritance Tax (IHTM12201). The fund is the net moveable estate after debts, funeral costs and any prior rights on intestacy. Settled property in which the deceased had an interest in possession, and property over which they had only a general power of disposal, are not subject to legal rights (IHTM12225).

When the calculation is done for Inheritance Tax on the death, HMRC’s practice is to ignore the Inheritance Tax itself and administration expenses, so the figure is somewhat artificial (IHTM12225).

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Can someone take both the will and their legal rights?

No. A spouse or child who is left something in the will must choose between the will provision and legal rights (IHTM12229). If the will gives them at least as much, accepting it usually settles the point. Where someone is left nothing, they can claim (assert) or renounce (discharge) their rights. Legal rights can also be discharged in advance during the deceased’s lifetime, for example in a marriage contract or by a child receiving a substantial lifetime gift, and the person discharging is then treated as having died for the calculation.

How do legal rights change the Inheritance Tax bill?

On the first death, HMRC allows full spouse exemption on the property the surviving spouse or civil partner actually takes, including anything taken through legal rights (IHTM12222). See the spouse exemption.

Legitim works the other way. A common Scottish will leaves everything to the surviving spouse. If the children claim legitim, part of the estate passes to them instead, the spouse exemption is lost on that part, and tax may become payable above the available nil rate band. For the partly exempt estate calculation, legal rights claimed are treated as a specific gift bearing its own tax (section 42(4), IHTM26086).

The IHT400 asks, where the deceased was domiciled in Scotland, whether legal rights have been claimed or discharged (IHTM12222). Often no decision has been made yet. HMRC asks executors what the potential claimants intend where tax is at stake, and warns that interest runs from the original due date if decisions are postponed. If a claim could still increase the tax, HMRC may refuse an IHT30 clearance certificate until the position is known.

What happens if a child renounces or simply does not claim?

Legal rights are property within section 272 of the Inheritance Tax Act 1984 and form part of the estate of the person entitled to them (IHTM12223). So giving them up can be a transfer of value by that person:

Within two years of the death, a renunciation may qualify as a variation under section 142, so it is read back into the deceased’s estate and is not a gift by the child (IHTM12229, IHTM35071). The written instrument must include the statement that section 142(1) applies. See deeds of variation.
After two years, HMRC treats a discharge as a transfer of value by the person discharging, and a deliberate omission to claim as a transfer of value under section 3(3) (IHTM12223).

Under the general law, legal rights must be claimed within 20 years of becoming enforceable or they are lost (IHTM12226). That long period does not change the two year Inheritance Tax window.

What special rule applies to children under 18?

Section 147 deals with a will that leaves so much to a surviving spouse or civil partner that there would not be enough left for the legitim of a child under 18. The basic rule is that tax is charged as if legitim had been claimed, restricting the spouse exemption, with tax repaid if the child renounces before reaching 18 or within two years after (section 147(2) and (6)). Repayments under this rule have no time limit (section 147(8)).

Alternatively, the executors can elect, by written notice to HMRC within two years of the death, to give full spouse exemption at the outset, with tax charged later if legitim is claimed (section 147(3) to (5)). Although the age of legal capacity in Scotland is 16, the section 147 age remains 18 (IHTM12250). Section 147 does not apply on intestacy (IHTM35211).

What if a claimant dies before deciding?

Their executors can claim or discharge the rights instead (IHTM12230). Until there is a formal discharge or a true election, the unclaimed legal rights are an asset of the claimant’s own estate and must be valued, with interest from the first death (IHTM10302). The exception is a claimant who dies under 18, where section 147(7) means an amount renounced by their executors is not part of their estate.

The reverse also happens. HMRC’s example is a son who leaves his legal rights in his father’s estate unclaimed while his mother inherits everything, then claims after her death. The claim, with interest, is a debt of the mother’s estate (IHTM10303).

How might this work in numbers?

Illustration only. Iain dies domiciled in Scotland, survived by his wife and two adult children. His will leaves everything to his wife. His net moveable estate for the legal rights calculation is £600,000, and he also owns a house.

Legitim is one third of £600,000, so £200,000 split between the two children.
If both children claim legitim, £200,000 passes to them and is not covered by the spouse exemption. Whether tax is payable depends on the nil rate band available.
If both children renounce within two years in a document containing the section 142 statement, the whole estate passes to the wife and is spouse exempt.
If they renounce after two years, each child makes a potentially exempt transfer of their £100,000 share.

Which mistakes come up most often?

Treating a will in favour of the spouse as fully spouse exempt without considering whether the children will claim legitim.
Including heritable property in the legal rights fund. Only moveable estate counts.
Letting the two year window pass without a decision, which turns a later discharge into a lifetime gift by the child.
Forgetting unclaimed legal rights in a previous estate when valuing the estate of someone who has since died.

Legal rights also apply on intestacy, alongside prior rights; see intestacy and Inheritance Tax.

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Reviewed by Christine Anderson, Broker, Solar Protect. Last reviewed 24 October 2026. Part of Accountapedia, the Solar Protect guide to UK tax and accounting. This page is general information, not personalised advice.