02 Feb 2021
By Megan Hainey, Solicitor in Private Client at Blackadders LLP
The Office of National Statistics figures suggests approximately 60% of the UK population lived within a couple in 2019. Although the majority of these couples were married or in civil partnerships, around one in five were cohabiting and this figure is increasing each year. It is therefore not surprising that many of our estate administration instructions involve the death of a cohabiting partner.
Scots Law for Cohabitants
In Scotland, section 25 of the Family Law (Scotland) Act 2006 (“the 2006 Act”) defines a cohabiting couple as a man and woman who are, or were, living together as husband and wife, or two people of the same sex who are, or were, living together as if they were civil partners. When determining whether a person is a cohabitant, the Act states that the court shall consider the length of period during which the couple have been living, or lived, together and the nature and extent of any financial arrangements during that period.
Rights of a Cohabitant upon death
It is important to highlight that cohabiting couples do not have the same succession rights as couples who are married or in a civil partnership.
If someone dies ‘testate’ (i.e. with a Will), and makes no provision for their cohabitant within that Will, the surviving cohabitant will have no claim against their partner’s estate. The protection from disinheritance afforded to spouses and those in civil partnerships does not apply to cohabiting couples.
If someone dies ‘intestate’ (i.e. without a Will), section 29 of the 2006 Act makes certain provision for the surviving cohabitant to make a claim to the court for a share of their partner’s estate. There are, however, a number of strict criteria the court must take into account when considering a cohabitant’s claim e.g. the claim must be made to the court within 6 months of the date of death. If no Executor has been appointed within this time, it raises practical difficulties for the potential claimant. In addition, the award which the court can make to a surviving cohabitant is discretionary and cannot exceed the amount which a surviving spouse or civil partner would have received if their respective spouse or civil partner had died intestate. The court will consider the size of the deceased’s estate and whether the surviving cohabitant has benefited from the estate in any other way i.e. a property automatically transferring to them on death, or having been nominated to receive a death in service payment.
Benefits of having a Will
The importance of having a professionally drafted Will, particularly in these circumstances, cannot be underestimated. If you are in a cohabiting relationship, the simplest way to ensure that your partner benefits from your estate is to set out your wishes for them in your Will. You will have the reassurance of knowing that your partner will not suffer the further distress, in addition to the personal loss they have suffered, of having to pursue a claim through the court. The cost of having a professionally drafted Will is modest in comparison with the costs that may potentially be incurred in raising a court action.
If you need any advice about 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 Blackadders’ Private Client Team working in Aberdeen, Dundee, Edinburgh, Glasgow, Perth and across Scotland.
Megan Hainey, Solicitor Private Client Blackadders LLP
