Trusts and Succession (Scotland) Act 2024: What Changed for Scottish Estates

The Trusts and Succession (Scotland) Act 2024 is the most significant reform to Scottish succession law in decades. It amends the Succession (Scotland) Act 1964 and the Family Law (Scotland) Act 2006, and its changes affect how estates are distributed on intestacy, the rights of cohabiting partners, and the position of separated spouses.

If someone dies in Scotland in April 2024 or later, these changes apply.

Why This Reform Happened

Scottish succession law had not been comprehensively updated since 1964. The social landscape had changed dramatically — higher rates of cohabitation, later marriage, more complex family structures, and longer periods of marital separation without divorce. The old rules produced results that were increasingly out of step with how families actually lived.

The Scottish Law Commission recommended reform after a lengthy review. The Trusts and Succession (Scotland) Act 2024 enacted many of those recommendations, phased in over time.

Change 1: Surviving Spouse Now Inherits the Entire Free Estate on Intestacy (No Children)

This is the most practically significant change.

Under the old law, if a person died intestate (without a Will) leaving a surviving spouse but no children, the Free Estate — what remains after Prior Rights and Legal Rights are satisfied — was divided between the spouse and the deceased's parents and siblings. The spouse did not automatically inherit everything.

Under the Trusts and Succession (Scotland) Act 2024 (applying to deaths after April 2024), the surviving spouse or civil partner inherits the entire Free Estate on intestacy when there are no children. Parents and siblings no longer have a claim to the Free Estate ahead of the spouse.

In practice, this means that for a couple without children where one partner dies without a Will, the surviving partner is likely to inherit the entire estate — subject to Prior Rights and Legal Rights calculations — without having to share it with the deceased's parents or siblings.

The Separated Spouse Problem

The same change creates a serious risk for separated couples.

Under the new rules, a person who is legally married but separated from their spouse — even separated for many years, with no contact, financial independence, and separate lives — remains the "surviving spouse" for the purposes of succession law until a formal divorce decree is granted.

If that separated spouse dies intestate (and many do, having never updated their estate planning after separation), the estranged spouse inherits the entire Free Estate. The deceased's parents, siblings, adult children from a previous relationship, or new partner receive nothing from the Free Estate.

This is entirely lawful. There is no mechanism in the 2024 Act for courts to override this outcome based on the circumstances of the separation. The only ways to avoid it are:

• Complete the divorce before death
• Leave a valid Will directing the estate elsewhere (though Legal Rights claims by the separated spouse on the moveable estate may still exist)

For families in this situation, the key action is to seek legal advice immediately on contesting the distribution or exploring whether the Will (if any exists) can minimise the separated spouse's entitlement.

Change 2: Cohabitant Claim Deadline Extended from 6 to 12 Months

Under Section 29 of the Family Law (Scotland) Act 2006, a cohabiting partner who is not married or in a civil partnership can apply to the court for a financial award from the deceased's intestate estate. Previously, this application had to be made within six months of the date of death.

Section 78 of the Trusts and Succession (Scotland) Act 2024 extends this deadline to twelve months from the date of death.

This extension provides cohabiting partners — who have no automatic inheritance rights in Scotland — with more time to gather evidence and instruct lawyers before the claim becomes time-barred.

The deadline remains absolute. Scottish courts cannot extend it, even by a single day. A cohabitant who misses the twelve-month window loses all right to make a Section 29 claim permanently.

The financial award from a Section 29 claim is capped at the amount the cohabitant would have received had they been married to the deceased. It is not an absolute entitlement — the court has discretion and considers the length of the relationship, contributions made, financial dependency, and other factors.

For executors: the twelve-month window means you should be cautious about distributing an intestate estate where a cohabiting partner exists, until you have confirmation that the claim period has passed or the cohabitant has formally declined to claim.

Change 3: Trustee Powers and Administration Reforms

The 2024 Act also made substantial changes to the law governing Scottish trusts, including:

• Modernising the powers available to trustees (investment, delegation, and management powers)
• Updating the rules on trustee appointment and removal
• Streamlining the process for court applications relating to trust administration

These trust law changes primarily affect professional trustees, charitable trusts, and family trust arrangements — they are less likely to affect the average family estate. But if the deceased was a trustee of an ongoing trust (a family trust set up years ago, or a will trust from a predeceased relative), the new trustee powers apply to the ongoing administration of that trust.

What Executors Should Check

If the death occurred on or after April 2024, executors should review:

1. Intestacy distribution. If there is no Will, confirm whether the new Free Estate rules apply. Check whether the person is actually divorced (not merely separated) before assuming the surviving spouse has no claim.

2. Cohabitant claims. If the deceased was cohabiting with a partner and died intestate, do not distribute the estate within twelve months of death without either obtaining a formal waiver of the Section 29 claim or waiting for the twelve-month period to expire.

3. Separated spouse risk. If the deceased was separated but not divorced, take legal advice before distributing on any basis other than the statutory intestacy rules. The separated spouse may be entitled to the entire Free Estate.

4. Will validity. The 2024 Act does not change the rules on making a valid Will — it changes what happens on intestacy. If there is a valid Will, it still governs the estate (subject to Prior Rights and Legal Rights). Confirm that the Will is signed, witnessed, and was made while the deceased had capacity.

Why the Changes Reinforce the Case for Making a Will

The reforms do not resolve the underlying problem for many Scottish families: intestacy produces distribution outcomes that the deceased would not have chosen.

A valid, up-to-date Will:

• Ensures the estate goes to the people the deceased actually wanted to benefit
• Allows the deceased to choose their executor rather than relying on the statutory hierarchy
• Can minimise (though not eliminate) the risk of Legal Rights claims disrupting the intended distribution
• Provides clarity for everyone involved, reducing family conflict

The cost of having a Will professionally drafted by a Scottish solicitor is modest compared to the complexity and cost of administering an intestate estate — particularly where the new rules produce unexpected results for separated couples or cohabiting partners.

The 2024 Act changes the landscape for Scottish estates — especially for separated couples and cohabiting partners. The When Someone Dies in Scotland Estate Settlement Guide covers the updated intestacy rules, the cohabitant claim process, and practical guidance for executors navigating estates under the new law.

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