My cohabitant has died without a will – what are my rights?

My cohabitant has died without a will – what are my rights?

A surviving cohabitant is not automatically entitled to benefit from their deceased cohabitant's estate where there is no will. This can make an upsetting time more difficult to deal with. When there is no will in place, the surviving cohabitant can apply to the court for financial provision following the death.

How do I make an application?

You can make an application to receive a benefit from the deceased's estate by instructing your solicitor to apply to the court on your behalf.

Once an application has been made, the court will determine whether or not you will receive an inheritance from the deceased's estate.

If my application is successful, what am I entitled to?

The court can order for a capital sum to be paid to you from the deceased's net estate. The order can also stipulate that property from the deceased's estate be transferred to you.

The order cannot provide you with an amount that would be greater than you would have received if you were married to or in a civil partnership with the deceased.

What factors will the court consider?

Importantly, the court must be satisfied that you were cohabiting with the deceased. This means living together as if you were married or in a civil partnership.

Thereafter, when considering your application, the court will take account of the following:-

• The size and nature of the deceased's net estate;

• Any benefit that you have received or will receive as a result of the death (for example if heritable property passes to you as a result of the title deeds or if you receive benefit through a life assurance policy or pension);

• The nature and extent of any other rights against, or claims on, the deceased's estate (this might be claims from other family members); and

• Any other matter the court considers appropriate.

The deceased must also have been domiciled in Scotland before their death.

When do I have to make my application?

The application must be submitted to the court within six months of the deceased's death.

As such, it is important to contact your solicitor at an early stage to ensure that the application can be submitted within this short time period.

What if my cohabitant left a will?

If your cohabitant died with a will, it is not possible to make an application to the court for financial provision.

What can I do to avoid this situation?

Our advice remains the same – make sure you have an up to date will in place. By making provision for your cohabitant in a will, you are giving yourself and your cohabitant peace of mind that your affairs are in order, and your cohabitant will be looked after. This avoids a court process with a tight deadline during an already difficult time.

Please note that the content of this blog only applies to Scotland.

At Brodies LLP, we have top-rated solicitors in our personal and family teams and in our dispute resolution teams who are experienced in advising on contentious trusts and estates. Please contact us if you require our assistance.