Wills and cohabiting in Scotland: legal rights, the weak position of cohabitants and inheritance tax
If you live in Scotland, Scots law decides on your estate. A spouse and children always keep a right to part of your moveable property there, even if your will says otherwise. A cohabitant inherits nothing automatically and must go to court within six months. And the Netherlands keeps charging inheritance tax for ten years.
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If you live in Scotland, Scots law decides how your estate is divided. The Dutch government puts it like this: the United Kingdom does not take part in the European Succession Regulation, so the law of the country where you live decides which inheritance law applies. Three things to know first:
- A spouse or registered partner and your children always keep a right to part of your moveable property, the legal rights. A will cannot take that away.
- A cohabitant inherits nothing automatically. Without a will they can only apply to the court, within six months of the death.
- The Netherlands charges inheritance tax for ten years after you leave as if you still lived there.
A Dutch will stays valid in Scotland if it was made according to the Dutch rules. Whether it does what you want under Scots law is another question. Have it checked by a Scottish solicitor, a lawyer who also draws up wills.
What are legal rights?
Legal rights are a fixed share of your moveable estate, your moveable property: money, investments, the car, the household goods. Your house and land (heritable property) fall outside it. The split, as the Civil Partnership Act 2004 sets it out for registered partners:
- If you leave a partner and children, the partner can claim a third of the moveable estate and the children together another third.
- If you leave a partner but no children, the partner can claim half.
For a spouse these rights are called jus relicti and jus relictae, for children legitim. Anyone who claims their legal rights gives up what the will gave them. A Dutch registered partnership is listed in British law as an overseas relationship and is generally treated as a civil partnership.
What if there is no will?
Then a spouse or registered partner first receives the prior rights. The legal rights follow, and only then is the rest of the estate divided.
| Prior right | Amount since 1 February 2012 |
|---|---|
| The house where the partner lived | up to £473,000 |
| Furniture and contents of that house | up to £29,000 |
| Cash sum, if there are children | £50,000 |
| Cash sum, if there are no children | £89,000 |
If the house is worth more than £473,000, the partner receives that sum instead of the house.
What does a cohabitant have?
Little. The Family Law (Scotland) Act 2006 gives a cohabitant no share of the estate, only the right to ask the court for a sum. Whether you are cohabitants, the court judges by how long you lived together, what the relationship was like and how you arranged your finances.
Two situations, each with a hard deadline:
- After a death without a will. The court can award the cohabitant a sum or property, but never more than a spouse would get. The application must be in within six months of the death. A 2024 act makes that twelve months, but on 27 October 2026 that part is not yet in force.
- After separating. The court can award a sum for what one partner gained or lost financially through the other, and for the care of your children. The application must be made within one year of separating.
The rule after death also only applies if the deceased had their domicile in Scotland: the country they saw as their permanent home, under Scots law more than just a home address. Someone who has only just moved cannot be sure of that.
If you live together without marrying, both of you should make a will. Without a will your partner depends on an application to the court, within six months, and perhaps not even that. With a will you decide, within the limits of your children's legal rights.
If you divorce, check your will. Since the Succession (Scotland) Act 2016 whatever the will gave your former spouse falls away, unless your will expressly says otherwise.
And a power of attorney for when you can no longer act yourself?
A Dutch levenstestament (lasting power of attorney) that you made while living in the Netherlands is governed by Dutch law under Scottish law. How the power is exercised does follow Scots law. Whether a Scottish bank or care provider accepts it without more, it is best to ask.
The Scottish form is the power of attorney. There are three kinds: financial (continuing), for health and welfare (welfare), or both. A solicitor or a doctor signs a certificate with the document. You then register it with the Office of the Public Guardian; that costs £99. Only after registration can your attorney start using it.
Who charges inheritance tax?
Two countries, each with its own clock:
- The Netherlands. A Dutch national who dies within ten years of leaving counts as a resident of the Netherlands for inheritance tax (Successiewet, article 3). The convention with the UK leaves that in place and credits the British tax.
- The UK. Since 6 April 2025 inheritance tax depends on how long you have lived there. If you are not a long-term UK resident, which you become after 10 of the last 20 tax years, your property outside the UK falls outside it. Above the £325,000 threshold the rate is 40%. What you leave to your spouse or civil partner is exempt.
How the two fit together, read in inheritance tax after emigrating.
In Vertrekklaar this is phase 5 of 5 of the journey, step 5.11: the same steps, but for your situation — in your order, tickable, and with the deadlines watched. See the whole journey to Scotland or go straight to step 5.11 in the open plan.
What this rests on
The facts in this article come from these official pages. Rules change. When in doubt, go by the source, not this article.
- Rijksoverheid — which inheritance law applies if you live abroad as a Dutch national, with the United Kingdom as a country outside the European Succession Regulation — rijksoverheid.nl
- Wills Act 1963, s. 1 — a will is formally valid if it follows the law where it was made, or of the country of residence or nationality — legislation.gov.uk
- Civil Partnership Act 2004, s. 131 — the partner's legal rights: half or a third of the moveable estate, and a third for the children — legislation.gov.uk
- Civil Partnership Act 2004, schedule 20 — the Dutch geregistreerd partnerschap as an overseas relationship — legislation.gov.uk
- Prior Rights of Surviving Spouse and Civil Partner (Scotland) Order 2011 — the prior rights amounts since 1 February 2012 — legislation.gov.uk
- Family Law (Scotland) Act 2006, s. 25 — who counts as a cohabitant — legislation.gov.uk
- Family Law (Scotland) Act 2006, s. 28 — a claim after separating, within one year — legislation.gov.uk
- Family Law (Scotland) Act 2006, s. 29 — a claim after death without a will, within six months — legislation.gov.uk
- Trusts and Succession (Scotland) Act 2024, s. 78 — six months becomes twelve, not yet in force — legislation.gov.uk
- Succession (Scotland) Act 2016, s. 1 — divorce cancels what the will gives the former spouse — legislation.gov.uk
- Office of the Public Guardian (Scotland) — types of power of attorney, registration and the £99 fee — publicguardian-scotland.gov.uk
- Adults with Incapacity (Scotland) Act 2000, schedule 3, paragraph 4 — a foreign power of attorney follows the law of the country where you lived at the time — legislation.gov.uk
- Dutch Inheritance Tax Act 1956 (Successiewet), article 3 — ten years after leaving — wetten.overheid.nl
- Netherlands–United Kingdom convention on estates and gifts, articles 11 and 13 — taxation within ten years, with a credit — wetten.overheid.nl
- Inheritance Tax Act 1984, s. 6A — long-term UK resident after 10 of the 20 tax years — legislation.gov.uk
- GOV.UK — inheritance tax, the £325,000 threshold and the 40% rate — gov.uk
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