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Protecting Your Partner: The Critical Need for Wills Among Cohabiting Couples

Cohabiting Couple

It is becoming increasingly common for couples to live together (cohabit) rather than marry or enter into a civil partnership with cohabiting-couple families now accounting for almost one in five families in the UK.   Indeed, you yourself may be thinking about moving in with a partner, or have already taken that leap.  Everyone hopes for a long and happy life together, but we should all make sure we have prepared if things turn out differently. This is particularly true in the scenario where one of the couple dies.

If you and your partner already have Wills

If you and your partner already have Wills in place that provide for each other, then that is the best way to ensure that your partner is provided for upon your death.

However, if you have a Will that does not provide for your partner then they will have no right to make a claim upon your estate following your death. The estate, unless a claim for Legal Rights by a child exists, will be distributed in line with the provisions of your Will. Therefore, while it is incredibly important to make a Will, it is equally important to update your Will following major life events such as moving in together.

If you or your partner do not have a Will

The absence of a Will creates significant additional worry, cost and delay for those you leave behind. Where a couple are not married or in a civil partnership, not having a Will has even greater consequences.

Many cohabiting couples often presume that they will be afforded the same inherent rights as a married couple upon their partner’s death. Unfortunately, this is not the case. The concept of a “common law” wife or husband no longer has any formal legal meaning or effect in Scotland.

A surviving cohabitant has no automatic right to their partner’s estate if their partner dies intestate, or in other words, without a Will. However, Scots law does recognise the concept of “cohabiting couples” and so cohabitants can make a claim against their partner’s estate provided that (i) the deceased was domiciled in Scotland immediately before their death, (ii) you and your partner were cohabiting in Scotland immediately before their death and (iii) an application to the Sheriff Court or the Court of Session is made within six months of the deceased’s death.   The Scottish Parliament has passed legislation to increase this period to twelve months after the death, but that law is not yet in force.  

Once an application is made to the Court, they will first decide whether you can be treated as a cohabitant of your partner. This means you must have been living together as if you were married or civil partners. The Court will consider the length of time you lived together, the nature of your relationship and any financial arrangements between you.

If the Court decides that you are a cohabitant of the deceased, they will then decide whether you should be entitled to an award and, if so, how much you should be entitled to. The maximum amount of award you are entitled to is what you would have received if you been married to or in a civil partnership with the deceased.

The amount awarded out of the estate is at the discretion of the Court. The award can be a cash sum or an asset from the estate, for example a house or a car. The Court will consider the size and nature of the estate, any benefits which the survivor has received from the cohabitant’s death and any rights or claims other people might have on the estate. So even with a successful claim, there is no guarantee your partner will receive what you had wanted them to receive.

In summary, if you are planning on moving in with a partner, or are already living together, it is strongly recommended that you make sure you have Wills that properly reflect your wishes. It is the only definitive way of ensuring they are protected and what you want to happen, actually happens.

For further advice, contact a member of Thorntons’ Private Client team on 03330 430150.

About the authors

Graeme Dickson
Graeme Dickson

Graeme Dickson


Wills, Trusts & Succession

Naomi Henderson
Naomi Henderson

Naomi Henderson

Trainee Solicitor

Wills, Trusts & Succession

For more information, contact Graeme Dickson or any member of the Wills, Trusts & Succession team on +44 131 322 6166.