Moving in together is an exciting next step for couples and one of the last things they might be thinking about is what will happen when one of them dies. However, there are legal implications of cohabiting when one person in the relationship dies, and recent recommendations and proposals for changes to the law may, if implemented, impact the rights that cohabitants have on death.

What counts as cohabitation?

Cohabitation is where a couple are living together as if they were married. If this is unclear, the court can look at a number of factors such as the length of time the couple lived together, the nature of their relationship and the nature and extent of any financial arrangements between the couple. The Scottish Law Commission has recommended that the key test should instead be that the couple were in an "enduring relationship" and that the court takes into account all of the circumstances of the relationship when considering whether the couple were cohabiting.

What rights do cohabitants have on death?

This depends on whether one partner dies with or without a will, as outlined here . A surviving cohabitant is not automatically entitled to benefit from their partner's estate when there is no will, and instead can apply to the court for financial provision. The claim must be brought within 6 months of the date of death and can only be made if the deceased was domiciled in Scotland.

What can the court award to cohabitants?

The court can order for a capital sum to be paid to the survivor from the deceased's net estate or can direct that property from the deceased's estate be transferred to the survivor. The court will take into account the following when deciding what might be appropriate:-

1. The size and nature of the net intestate estate;

2. Any benefit received or due to the survivor as a result of the death (such as if the survivor receives the proceeds of a life assurance policy or pension);

3. The nature and extent of any other rights against the estate (such as claims by other family members); and

4. Any other matter the court considers appropriate.

The court cannot award the surviving cohabitant with an amount greater than they would have received had they been married or in a civil partnership with the deceased. This is important in light of proposed changes to intestacy law which, if introduced, will allow a surviving spouse to inherit the whole estate if the deceased died without a will and with no children.

Our advice is to put an up to date will in place to ensure that your wishes are followed on your death. If you decide to move in with your partner, you should also consider putting in place a cohabitation agreement which, as well as protecting against a claim on death, can set out what should happen in the event of a breakdown of the relationship. Further, if your cohabiting partner passes away, it is critical to obtain early legal advice to avoid missing the court deadline.