If your cohabitant dies without a will in Scotland, understanding your rights and the deadline for making a claim is important.
In Scotland, where one party in a cohabiting relationship dies without a standard written will, the surviving cohabitant can make an application to the court under section 29 of the Family Law (Scotland) Act 2006 for financial provision. The court can award the surviving cohabitant a share of the deceased party’s estate.
Does a surviving cohabitant have an automatic right to an award?
It is important to note that the surviving party has no automatic right to an award. The surviving party will need to convince the court that an award is justified.
Who qualifies as a cohabitant under Scots law?
When considering if a couple are ‘cohabitants’ in terms of the Act, the court will need to consider:
- The length of the period the parties have lived together. Although there is no minimum time period, a brief period is unlikely to be sufficient. The court will likely want to hear that there has been a more significant period of cohabitation.
- The nature of the relationship between the parties during the period they lived together e.g. how the parties divided household tasks between them; what emotional and physical support they provided to each other; how they dealt with any childcare arrangements (if there were children); and how they presented to others.
- The nature and extent of any financial arrangements between the parties during their period of cohabitation. It will likely be helpful to a section 29 claim if the parties were sharing their income/resources to pay household bills etc.
What does the court consider in a section 29 claim?
The court must take into account various factors when considering a claim under section 29, namely:
- The size and nature of the deceased’s estate;
- Any other benefit received by the cohabitant as a result of the deceased’s death (such as the proceeds of a life policy, or a death in service payout);
- The nature and extent of any other rights/claims on the estate (such as from children); and
- Any other matter that the court considers appropriate. The court has a wide discretion as to how to deal with section 29 claims and each case will turn on its own individual facts and circumstances. The legislation does, however, state that the surviving cohabitant cannot be awarded more than the amount a spouse would receive under the laws of intestacy.
What is the time limit for cohabitants making a claim?
Currently any claim must be raised within six months of the date of death. As the surviving partner, you must ensure that the relevant application is drafted, lodged with the court, warranted and correctly served, usually, on the Executor of the Estate. All of these steps must be completed within six months of the date of death. This is a very tight timescale for the surviving cohabitant to obtain the required legal advice and follow that up appropriately, especially during a time of bereavement. The fact that there is no scope whatsoever for extension of the six-month time limit, makes this feel even more harsh.
Extension of the claim deadline to 12 months
However, from 14 December 2026,this time limit will be increased to 12 months. The new 12-month period should give the surviving partner more breathing space and time to take legal advice, in order to try and secure their future, following the death of their loved one.
Get advice on your rights as a surviving cohabitant
Regardless of the time limit, it is prudent to seek expert legal advice as soon as possible if your cohabitant passes away. Our Family Law team are here to help you with specialist legal advice.
