Given the continual increase in cohabiting couples within society, it's important that those in such relationships are aware of their rights on the death of their partner and any pre-emptive steps that can be taken to ensure their partner is provided for.
How can I provide for my cohabitant on death?
In the UK, while married or civil couples made up the majority of families in 2022 (66%), cohabiting couples represented nearly 1 in 5 families, and this proportion is steadily rising year on year.
There is a common misconception in Scotland that cohabitants will have similar or equal rights to spouses and civil partners on death. However, the legal framework which applies in Scotland treats spouses and civil partners very differently to cohabitants.
As cohabitation becomes more common, it is important that those in such a relationship have a firm understanding of their own rights as a cohabitant on the death of their partner.
Who is a cohabitant?
A legislative framework governing the rights of cohabitants was first introduced in 2006: the Family Law (Scotland) Act 2006. While the act recognises cohabitation (defined as living with another as if they were husband and wife or civil partners) and offers some protection, it does not treat cohabitants and spouses or civil partners the same. This distinction is crucial, especially in the context of inheritance rights.
If a court is required to determine whether individuals are or were "cohabiting" then they will consider various factors, such as the duration and nature of their relationship. The combination of "living under the same roof" while in a romantic relationship may be insufficient to qualify under the legislation.
What happens when a cohabitant dies "testate", i.e. they have left a will?
Cohabitants have no automatic rights to inherit from their deceased partner's estate when they have left a will. The deceased must explicitly name the cohabitant in their will to ensure they are provided for.
On the other hand, legal rights claims are available to spouses/ civil partners and children, which allow them to claim a share of the deceased's net moveable estate regardless of the contents of the will. Legal rights are available to those individuals in all cases (i.e. whether the deceased has left a will or not) and depend upon the family members who survive – one third of the net moveable estate where there are children and a spouse/ civil partner and one half of the net moveable estate where only one category survives. No such right is afforded to a cohabiting partner, meaning they can be disinherited entirely.
What happens when a cohabitant dies "intestate", i.e. they have not left a will?
When someone dies without a will, their estate is distributed according to the rules of intestacy. In Scotland, these rules do not automatically provide for cohabitants, which means a cohabitant is not guaranteed a share of the estate.
As outlined above, surviving spouses, civil partners, and children each have automatic legal rights. Additionally, on intestacy, a surviving spouse or civil partner has prior rights (specific additional rights granted to a spouse or civil partner on intestacy only). The spouse or civil partner's entitlement on intestacy may extend to the entire estate, depending upon the category of individual(s) who survive the deceased.
However, surviving cohabitants may apply to the court for financial provision from the deceased's estate. This is usually an order for payment of a capital sum, or the transfer of assets. It is important to note that such claims are only available in cases of intestacy, i.e. where the deceased did not leave a will.
How is a court claim submitted?
A surviving cohabitant may make a claim for financial provision. In considering the claim, the court can take into account a number of factors, including the size and nature of the estate, and any other benefit that the cohabitant is receiving due to the death of their cohabitant (such as a payout under a life insurance policy).
The main restriction on such claims currently is that the provision granted to a cohabitant cannot exceed what they would have received by virtue of the laws of intestacy if the couple had been married or in a civil partnership.
Are there any time limits?
Currently, claims must be made within a strict six-month timeframe, making timely action vital. This time limit will, however, shortly be extended to twelve months by virtue of the new Trusts and Succession (Scotland) Act 2024. This change is a step in the right direction, as it allows cohabitants more time to make a claim, during what is likely to be an extremely difficult time for them.
Despite these upcoming changes, there has been significant criticism that further provisions should be introduced for cohabiting couples. The extended timeframe is still relatively short, and still may be insufficient for cohabitants dealing with grief and potentially complex legal procedures (e.g. appointing executors to act in an intestate estate). There are still also no automatic rights for cohabitants.
How can I provide for my cohabiting partner?
The most effective way for cohabitants to ensure their partner is provided for is by preparing a will in their favour. This means the cohabitant can specify their wishes regarding the distribution of their estate, reducing uncertainty and potential family tension. When preparing a will, cohabitants should consider the following:
- Who they would wish to inherit certain assets and their intended division of the residue (remainder) of their estate. If a cohabitant is to be provided for, they should be clearly named in order to avoid confusion.
- The intended destination of any assets held jointly with a cohabitant, e.g. joint bank accounts, and any land or buildings held in joint names.
Once the will has been prepared and signed, this should be reviewed regularly and revised (either by a codicil or a fresh will) if appropriate, to reflect any changes in circumstances and new relationships. This is of particular importance should a relationship come to an end, and the will continues to name a former co-habitant as executor or beneficiary of the estate.
When a marriage or civil partnership ends, the terms of a will in favour of a former spouse or civil partner may, unless there are terms to the contrary within the will, be automatically revoked upon divorce or dissolution of the civil partnership by virtue of s1 of the Succession (Scotland) Act 2016. As such, there may be no need to update the will to take account of certain life changes, however, it is important to take advice and always ensure that wills are kept up to date.
On the contrary, provisions in favour of a co-habitant are not automatically revoked upon the end of the co-habitation. It is important, therefore, to ensure that wills are kept up to date, to be sure that your wishes are followed upon your death.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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