More and more couples are choosing to cohabit, rather than marry. While this is the right choice for many, a large portion of couples are unaware that there are far fewer legal protections available to surviving partners, compared with spouses, if one dies intestate, without a will.

This insight considers the protections afforded by Scots law when compared with the exceptional position in France. The legal protections available to surviving engaged partners differs markedly between jurisdictions. While Scotland provides a limited statutory framework for cohabitants, and those engaged to be married, France operates an entirely different, and quite unique, system that even permits posthumous marriage in certain exceptional circumstances.

France: a unique system of posthumous marriage

France is the only country in the world that permits posthumous marriage, in a process requiring approval by the French President. It is reported that between 60 and 100 applications are made each year for posthumous marriage, with approximately half of all applications being granted.

Posthumous marriage – the legal basis

Posthumous marriage is permitted under Article 171 of the French Civil Code, which provides that:

“The President of the Republic may, for grave reasons, authorise the celebration of the marriage where one of the future spouses is dead after the completion of the official formalities indicating unequivocally his or her consent. In this case, the effects of the marriage date back to the day preceding that of the death of the spouse. However, this marriage may not involve any right of intestate succession to the benefit of the survivor and no matrimonial regime is considered to have existed between the spouses”

The law is said to date back to 1803 when Napoleon introduced the mechanism in an effort to financially compensate the widows of dead soldiers. In modern times, the law exists to allow a couple to become married where the deceased had given clear consent to the marriage but died before the wedding ceremony could take place. A notable example of the law in action followed the terrorist attack at the Champs Elysees in 2017, when slain policeman, Xavier Jugelé’s partner was permitted to marry him, posthumously.

Eligibility for posthumous marriage

Two conditions must be met in France before the President will consider an application:

  1. Proof that the deceased would have consented to the marriage. This requires to be supported by evidence such as wedding rings/wedding dresses having already been purchased, pre‑nuptial agreements, or wedding announcements.
  2. A valid reason for the posthumous marriage, which may include long‑term shared life, unexpected death, or issues of paternity.

Applications are reviewed by the Direction des affaires civiles et du Sceau, and it may take six months to two years before a decision is reached.

Rights granted

Posthumous marriage offers fewer rights than marriage to a living spouse. A surviving partner may receive the deceased’s retirement pension, an assurance veuvage (widow’s allowance), and similar life insurance benefits. The marriage does not, however, create succession rights under French law and no matrimonial property can be considered to have existed. Despite its symbolic importance, posthumous marriage in France does not provide inheritance protection for cohabitants.

Spouses and non-spouses in France are also treated very differently for French inheritance tax (IHT) purposes. In France, like the UK, assets a surviving spouse receives are subject to IHT spousal exemptions. In contrast, in France a non-married surviving cohabitant is treated as an entirely unrelated party and is taxed on everything the receive from their deceased partner at a flat rate of 60%. This may be another factor that motivates surviving cohabitants in France to apply for posthumous marriage.

Scotland: limited rights for surviving cohabitants

Cohabitation is increasingly common in Scotland, and across the UK the number of cohabiting families more than doubled between 1996 and 2017. Despite this, Scots law provides surviving cohabitants with no automatic inheritance rights to claim on the estate of their deceased partner if they die without having made a will. In Scotland, unlike France, there are no special laws which protect those who are engaged to be married in these circumstances as opposed to those couples who are simply cohabiting. Scots law does not treat those who are engaged to be married differently than those who are simply cohabiting.

Where the deceased left a will

If the deceased leaves a will that does not include the surviving partner, the survivor has no right to claim on the estate of the deceased. This applies even where the couple lived together for many years or are engaged to be married.

Where the deceased died intestate (without a will)

A cohabitant may make a claim on the estate if the deceased was domiciled in Scotland, the couple were cohabiting immediately before death, and the claim is made within six months of the date of death. All of these criteria must be satisfied before a claim under s.29 of the Family Law (Scotland) Act 2006. There are also limited orders which are available to the surviving spouse to crave from the court in these circumstances. The court may order payment of a capital sum, or transfer of heritable or moveable property from the intestate estate. Cohabiting couples are not, however, entitled to receive a sum greater than what they would have received if they were married to the deceased. There is considerable uncertainty with claims of this type, given that each case will turn on its own merits and the court has discretion in deciding the nature of the award.

Challenges with the current law for surviving cohabitants

There are several criticisms of the Scottish system, namely that there was a lack of clarity on how to calculate awards, there has been limited guidance for courts, the very short six‑month time limit to make a claim and a lack of certainty for surviving partners. All of these issues mean that it can be difficult for legal practitioners to provide advice in relation to the prospects of success in respect of these types of claims, as each case turns on its own merits and the court has such wide discretion in deciding the nature or extent of the award to be made.

Practical takeaways for cohabiting couples in Scotland

Across both jurisdictions, the message is consistent - cohabitation and engagement alone does not adequately afford automatic rights on death. Cohabiting and engaged couples may consider entering into a cohabitation or pre-nuptial agreement in order to detail how assets and liabilities will be dealt with in the event of a separation, however, in the event of death the making of a valid will is essential for ensuring a partner is provided for, whether the couple is married, engaged or cohabiting. It is also important to seek legal advice promptly if a cohabiting partner dies in either jurisdiction, time is of the essence. For more information on cohabitation agreements, please get in touch with our family lawyers. For more information on preparing a will, please get in touch with our wills and estate planning lawyers.

Contributor

Eildh McRitchie-Conacher

Associate