What is cohabitation?

Cohabitation is an increasingly popular choice for many couples in Scotland. Cohabiting couples are those that live together as if married or in a civil partnership, without ever getting married or entering a civil partnership.

In the past, you may have heard about ‘Common Law Marriages’. For years in Scotland, couples could consider themselves as married by cohabitation with habit and repute. To be common law husband and wife, the couple needed to convince the court that they act like a married couple and that relatives, friends and others are under the belief that they are in fact married. Common law marriages would afford non-married couples the same rights as married couples, upon the death of a partner. The position of the law changed with the introduction of the Family Law (Scotland) Act 2006 (The Act), which abolished the commencement of new common law marriages from 4th May 2006. The Act also provided unmarried couples other rights upon the death of their partner.

What are the rights of (unmarried) cohabitants?

Cohabiting couples often wrongly presume that they will be afforded the same rights as married couples upon the death of their partner. However, this is not the case.

A cohabitant does not have an automatic right to their partner’s estate should they die intestate, or in other words without a Will. This directly differs from the position of a spouse, who is granted certain automatic rights upon the intestate death of their husband or wife. In such circumstances, the surviving partner has the right to apply to the court for a share of the deceased’s estate, so long as the deceased was domiciled in Scotland and the parties were cohabiting immediately before death.

A cohabitant can only make a claim against the deceased’s net intestate estate. This means that any Inheritance Tax, Prior Rights and Legal Rights claims will be paid out the estate prior to the cohabitation claim. In some circumstances, cohabitants can be left very little or nothing at all, should preceding claims exhaust the estate.

When looking at a claim, the Court will give consideration to the duration and nature of the relationship, as well as the following matters:

• The size and nature of the estate;
• If the surviving partner has received, or is to receive, anything in consequence of the deceased’s death or from somewhere out with the estate;
• The nature and extent of any other rights or claims on the estate; and
• Any other matters the court sees as appropriate.

The Court can make an order for payment of capital and also for the transfer of property out of the intestate estate. Any award made to the surviving cohabitant is a discretionary award, which means that the Court decides exactly how much they are due from the estate. The law dictates that an award made to a surviving cohabitant cannot be any more than what they would have received if they were married to the deceased. While there is this upper limit to an award, there is no lower limit and it has proven extremely difficult to quantify how much the Court is likely to grant to a cohabitant.

Additionally, and very importantly, cohabitants face a very restrictive time limit of six months following the date of death of their partner to lodge a claim. Failure to do so will result in the claim being time barred. This time limit has been widely criticised for being too short, especially given that these months are a time of loss and grieving for surviving cohabitants.

It is important to note that a cohabitant only has the right to apply for a court order where the deceased did not have a Will in place. Where a deceased cohabitant leaves a Will, which excludes their cohabiting partner from inheriting any of their estate, the partner does not have any rights to claim against the estate.

Potential law reform

In recent years, the Scottish Government has carried out consultations on the Law of Succession, with the most recent being issued in February 2019. The consultations sought responses on a wide variety of succession matters, including cohabitation and intestacy. While failing to obtain a consensus on several matters, the Government has acknowledged that the six-month deadline for cohabitants to lodge a claim is too short. The Government has also agreed that this time limit should be extended to twelve months and that it will legislate accordingly. We await any actual changes to the law and currently the six-month time limit stands.

Preparing a Will

The process for a cohabitant to claim a share of their deceased partner’s estate is restrictive, time consuming and stressful. Preparing a Will is the easiest and most cost-effective way of protecting your loved ones and ensuring your estate is distributed as you wish. While this is true for everyone, it is especially important for cohabitants, who would otherwise miss out on the automatic rights afforded to a spouse.

Contact our Estate Planning Lawyers at The McKinstry Company

If you have any queries for our estate planning lawyers please do not hesitate to get in touch.