Recent succession law changes – what do they mean for cohabitants making claims on death?

If you live with your partner but are not married or in a civil partnership, the law in Scotland may not protect you as you expect if they die without a Will.

Unlike spouses and civil partners, cohabitants do not automatically inherit anything. Instead, a surviving partner must apply to the court under section 29 of the Family Law (Scotland) Act 2006. The court then decides, on a discretionary basis, whether to award anything at all.

What has changed?

Recent reforms introduced by the Trusts and Succession (Scotland) Act 2024 have altered the order of priority on intestacy.

Under the updated law:

• A surviving spouse or civil partner now ranks ahead of wider family members, such as parents and siblings
• In cases where there are no children or grandchildren, the spouse or civil partner is now entitled to inherit the entire estate
• Only where there are children do others continue to share in any part of the estate after the spouse’s prior and legal rights are met

Previously, even in a no-children scenario, parents or siblings could still inherit part of the remaining estate after the spouse’s entitlement. That is no longer the position. The law has been simplified to prioritise the spouse more clearly.

Why does that matter for cohabitants?

Although cohabitants still don’t have the same rights as spouses, the court must cap any section 29 award at the level a spouse would have received on intestacy.

That means:

• The spouse benchmark has increased in many cases
• Where there are no children, that benchmark may now be the whole estate

Does that mean a cohabitant will get more?

Not necessarily.

Section 29 claims are discretionary. The court will continue to look at:

• the size and nature of the estate
• any competing claims (for example, from parents or siblings)
• what the surviving partner has already received following the death

The court is not required to replicate the outcome a spouse would have achieved. It simply cannot exceed it.

A practical point

Where estates include assets abroad, matters can become more complicated. Not all property will necessarily form part of the net intestate estate available for a section 29 claim.

The key takeaway

The law has moved on – but cohabitants still do not have automatic inheritance rights.

If you are living with a partner, the best way to protect your position remains:

• putting a Will in place, and
• taking advice on how your estate should be structured

If you would like advice about cohabitant claims or planning for the future, our family law team would be happy to help.