It is a common misconception that living together comes with similar rights to that of married couples or civil partners. The reality is that cohabitants have no automatic rights in the event of their partner’s death and would instead have to turn to costly, time-consuming and uncertain court action to apply for any provision from the estate.
Under the Family Law (Scotland) Act 2006 (‘the 2006 Act’), cohabitants are defined as couples who are living together as if they were married or civil partners. The first hurdle, however, is that the fact of simply living in the same house is not sufficient to establish whether a couple is cohabiting in terms of the legislation. In deciding whether a relationship qualifies as one of cohabitants, the court shall consider the length of time that the couple lived together, the nature of their relationship during that time and the nature of any financial arrangements that they had.
Section 29 of the 2006 Act allows the court, on the application of a cohabitant, to order a payment of a capital sum or the transfer of property to the survivor, but only if the deceased died intestate (without leaving a Will). At the time of writing, the court action must be raised within 6 months of the date of death. The legislation extending the time limit to 12 months is not yet in force. This is likely to add considerable stress at an already difficult time.
The court cannot make any greater provision for a cohabitant than a spouse or civil partner would have received, but aside from that it has a very wide discretion when deciding what order to make, if any. The legislation sets out that the court shall have regard to the size and nature of the deceased’s estate, any other benefits that the survivor is due to receive, for example payments from life insurance. Importantly, the court must also consider other parties’ rights and claims against the estate, including the deceased’s children or even an estranged spouse if the deceased was separated but not legally divorced. All of these factors could lead the court to reduce the sum that they are prepared to award to a cohabitant. The case law in this area is limited and unpredictable.
Whilst spouses and civil partners are entitled to claim a ‘forced inheritance’ called Legal Rights if they are not provided for in a Will, no such claims exist for cohabitants. A cohabitant cannot make a Section 29 application to court as above if their partner left a Will that did not provide for them, even if their partner’s Will was simply out of date and they had forgotten to update it. It is therefore likely that a cohabitant would receive nothing.
If the parties are joint owners and the title to the property contains a survivorship destination, the survivor will automatically inherit the deceased owner’s half-share on their death, regardless of any provision of their Will or the rules of intestacy. Survivorship destinations are becoming less common. In addition, the survivor would need to be in a position to make payments in full towards any outstanding mortgage, which could be very difficult if they receive no other provision from their partner’s estate.
If the parties are joint owners and the title to the property is held in pro indiviso shares or if the deceased was the sole owner, the deceased’s share will pass to the beneficiaries of their estate in their Will or per the rules of intestacy. The surviving partner would need to come to an agreement to buy out the beneficiaries in order to keep their home or their home would need to be sold.
All cohabiting couples ensure that they have Wills in place and that these are kept up to date, with reviews on a regular basis, in particular considering major life changes such as the start or end of a relationship, having children or moving home. BTO’s experienced Wills, Estates and Succession Planning team can provide advice and guidance to give you peace of mind.
Katie Armstrong, Solicitor – KAR@bto.co.uk or call 0141 221 8012
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