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Cohabitation – where there’s a Will, there’s a way

June 1, 2023

In 2021, 22% of couples who lived together were cohabiting rather than married or in a civil partnership. This is the fastest growing family type in the UK, having increased by 144% since 1996.

Do cohabitants have the same rights as married couples on death?

A common misconception is that by living together with all the same characteristics as a married couple, you can acquire the same rights as a ‘common law spouse’. This does not exist in Scotland. This means that cohabitants do not immediately have the same rights on death as married couples.

What can my partner do if I die?

Under section 29 of the Family Law (Scotland) Act 2006, a cohabitant can make an application to the court for financial provision on the death of their partner if their partner died without leaving a Will (‘intestate’), was living permanently in Scotland immediately before their death and was living with the applicant. An application must be made within six months of the deceased’s death and the court cannot allow any extensions, which can be an added worry in the immediate aftermath of a death.

What kind of financial provision can I apply for if my partner has died?

It is possible for the court to make an award under this section for payment of a capital sum or for transfer of an asset, such as a property. However, the court cannot award any more to a cohabitant than a spouse or civil partner would receive on intestacy. In some cases, cohabitants often receive much less.

It can be difficult to predict and advise what award is likely to be made as the court has a very wide discretion and can take a number of factors into account, for example any other benefits that the cohabitant will receive on the death of their partner, such as sums from life insurance policies. This can reduce the award that the court is prepared to make, causing uncertainty for the cohabitant and their future planning at an already difficult time.

What if my partner was separated or had children?

It is likely that the claims of others on the intestate estate would be considered so the cohabitant may find that they are in ‘competition’ with the deceased’s children, or indeed a surviving spouse if they were separated from an estranged spouse but had not divorced or entered into a formal separation agreement. The legal and prior rights of any surviving spouse are likely to exhaust or substantially reduce any estate available for a claim by a cohabitant.

Should I make a Will?

Section 29 claims are not available to cohabitants where their partner has died leaving a Will (known as ‘Testate’). However, given the discretionary nature of these claims, the only way to protect your cohabiting partner’s interests is to make a Will. It is estimated that only around 1/3 of adults in the UK have a Will.

I already have a Will – should I update it?

Around half of UK Wills are thought to be out of date (i.e. more than 5 years old) and it should be stressed that Wills should be reviewed on a regular basis and in anticipation of major life changes such as starting or ending a relationship, having children or moving home. The risk of an out of date Will for a cohabitant can be as high as if their partner had left no Will at all. Your partner may have no claim on your estate if you have left your estate, particularly your interest in any shared home, to someone else.

If you need any advice following the death of your cohabiting partner, or if you are in a cohabiting relationship and need advice about having your Will drafted, please get in touch with our experienced Private Client team, working in Aberdeen, Dundee, Edinburgh, Glasgow and across Scotland.

Nicola Burns

Nicola Burns

Director of Operations

Marketing Team

+44 1382 342217

The opinions expressed in this site are of the author(s) only and do not necessarily represent the opinions of Blackadders LLP.

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