The most recent figures published by the Office for National Statistics (ONS) on families and households in the UK show that cohabiting couple families were the fastest growing family type between 1996 and 2016, increasing by more than 50% from 1.5 million families to 3.3 million families.
With this increase, we are often asked about what rights cohabitees have should their partner die.
What is a “cohabitee”?
Section 25 of the Family Law (Scotland) Act 2006 defines a “cohabitant” as a man and woman who are, or were, living together as if they were husband and wife, or two persons of the same sex who are, or were, living together as if they were civil partners. The section also sets out various other factors which a court shall consider when determining whether or not a person is or has been a cohabitant. These include how long the relationship had been ongoing and what financial arrangements existed during the relationship.
What protections does a cohabitee have if their partner dies?
A cohabitant currently has no protection from disinheritance where their partner has died leaving a valid Will (this is often referred to as “testate succession”). However, the 2006 Act does provide rights for cohabitants on intestacy (when you die without leaving a valid Will). In cases where the person who died does not leave a valid Will, his or her cohabitant can ask the court for a share from the deceased cohabitant's estate under section 29 of the 2006 Act.
Is the entitlement automatic?
The rights contained in section 29 of the 2006 Act can be relied upon providing that the requirements set out within this section are met. The requirements are that the deceased must have died intestate and that the couple must have been cohabiting together in Scotland at the date of death of the deceased. The award which a court can make, cannot exceed the amount which the survivor would have been entitled to under statutory rules of intestacy had the survivor been the spouse or civil partner of the deceased and the application must be made within 6 months of the date on which the deceased died.
There are no automatic rights of succession for cohabitees, if he or she wishes to make a claim against the estate of their deceased partner then they must make a section 29 application for a sum of money or transfer of property from the deceased’s estate.
What factors matter to a court when making a decision?
In deciding whether to make an award to the surviving cohabitee, the court will consider the size and nature of the deceased’s estate; any other benefits the survivor may be entitled to as a result of the deceased’s death (i.e. proceeds from a life policy, property held in joint names passing automatically by survivorship, etc.); any other claims against the estate; and any other matter the court considers appropriate.
So what should I do?
Should you wish your partner to benefit from your estate then we would recommend making a Will to ensure your wishes are carried out. The cost of putting a Will in place is minimal in comparison to the significant costs involved in raising a cohabitant’s claim. It may be that you do not want your partner to benefit from your estate and in that case, our advice to you would be the same, you should make a Will. A valid Will prevents such a claim being made as it can only be made in cases where there is no Will.
Is the law likely to change?
Our Land & Rural Business team previously commented on the Scottish Government’s 2015 Consultation on potential changes to the Law of Succession in Scotland, of which one of the main focus areas was further protection for cohabitees. The deadline for responses was September 2015, however there has been no further progress with this as of yet. If the Scottish Government decides to take these proposals forward then this could provide us with the fundamental change that is required to bring the Law of Succession, in particular the law relating to cohabitees’ rights, up to date. We will continue to monitor the progress of this Consultation and any subsequent legislation.
Megan Maclean is an Associate in our Private Client department. If you have any questions about drafting or updating a Will please contact Megan on 01382 229111, email mmaclean@thorntons-law.co.uk or contact a member of our Private Client team.
