In Scotland, increasingly couples are favouring living together (cohabiting) over marriage. In the UK, the number of such families more than doubled from 1.474 million cohabiting families in 1996 to 3.291 million in 2017, a growth of 123%. Cohabiting couple families now account for 17% of all families in the UK.

There are legal implications to cohabiting, one of which is what happens upon the death of one person in the relationship.

Death of partner with a Will

If one partner dies leaving a Will and the surviving partner is not provided for within that Will, the surviving partner has no right to make any claims against the deceased's estate. For this reason, it is always advisable that individuals make Wills, whether they be married or cohabiting. This will ensure that following their death, their estate is distributed exactly as they wish it to be.

Death of partner without a Will

Surviving cohabitants have no automatic right to inherit any part of their partner's estate upon their death if the deceased did not leave a Will. However, a cohabitant can make a claim on the deceased's estate. There are a number of important points to be aware of when considering whether to make such a claim.

  1. Immediately before death the deceased must have been cohabiting with the surviving partner;
  2. The deceased must have been domiciled in Scotland, and
  3. There is a strict time limit insofar as any claim must be made within 6 months of the date of death.

On the making of a claim the court can make one or more of the following orders:-

  1. for payment to the survivor out of the deceased's net intestate estate of a capital sum;
  2. for transfer to the survivor of such property (whether heritable (house/land) or moveable) from that estate as may be so specified;

Review of the law

There are a number of criticisms made of the current law in this area. These are:-

  1. the very short period of time (6 months post death) during which a claim must be made
  2. lack of clarity and guidance relating to quantifying the level of the surviving partner's claim

The Scottish Government is currently reviewing the law of intestate succession, including a review of section 29. The family law team at Brodies will keep an eye on developments in this area and issue updates as soon as they are available.

In the meantime, the most important message is for everybody to take legal advice with regard to making a Will. Further, if the situation ever arises whereby a cohabiting partner passes away, it is critical that legal advice is sought, without delay.


Sarah Lilley