When someone dies, many people assume the funeral arrangements fall automatically to a spouse or the closest family member or is settled by the individual’s Will. In Scotland, the reality is more nuanced.
This article forms part of a series on funeral wishes and Scots Law and focuses on what happens when wishes have not been recorded - and who the law says steps in to decide.
Many people don’t record what they want to happen after their death because they think their loved ones will know what to do. But when a death occurs, emotions are heightened and decisions can become difficult, often leading to disagreement. If agreement cannot be reached, the Burial and Cremation (Scotland) Act 2016 sets out who is entitled to make decisions regarding funeral arrangements.
From a practical perspective, discussing your funeral preferences with your family is a considerate step that can significantly ease the burden on those you leave behind. In the immediate aftermath of a death, relatives must often make important decisions quickly and under emotional strain. Clear guidance about your wishes helps remove uncertainty, avoid potential disagreements, and reassures loved ones that they are honouring your intentions.
There is also a meaningful emotional benefit. Knowing they are carrying out a loved one’s wishes can bring comfort and clarity at a difficult time. Although we are not always good at talking about death, it is a natural and inevitable part of life. Those who have had these conversations are often very glad they did, finding reassurance in having shared something so important in advance.
Where an adult dies without having expressed any clear wishes, or where those wishes cannot reasonably be carried out, the Act allows the “nearest relative” to make arrangements. The nearest relative of the deceased will be determined by a hierarchy set out in section 65 of the Act:
- Spouse or civil partner;
- Cohabitant;
- Children (including step-children);
- Parents;
- Siblings;
- Grandparents;
- Grandchild;
- Uncle or aunt;
- Cousins;
- Niece or nephew;
- Longstanding friend.
If the deceased is permanently separated from a spouse or civil partner, or was under 16 years of age immediately prior to the death, that individual is disregarded from the hierarchy.
Where more than one person falls within the same category in the hierarchy, they rank equally and should work collectively to make arrangements. If they cannot reach agreement, a claim can be brought before the Sheriff Court.
What is a cohabitant?
For the purposes of the Act, a cohabitant is someone who was not married to, or in a civil partnership with, the deceased, but was living with them as if they were. This must have been the case for a continuous period of at least six months immediately prior to the death.
If the deceased had been admitted to hospital shortly before their death, the six-month period is assessed up to the date of admission, rather than the date of death.
In practice, this reflects the reality of many modern families, where couples may live together in long‑term, committed relationships without being formally married or in a civil partnership.
Section 68 of the Act allows any person claiming an interest to apply to the Sheriff for a determination as to who is entitled to make those arrangements. The sheriff may declare that a specified individual holds that right, whether by virtue of an “arrangements on death declaration” made by the deceased or by operation of the statutory hierarchy set out in sections 65 above.
Thorntons were recently instructed in a section 68 claim involving a dispute between the siblings of a deceased individual and his surviving partner. While it was not contested that the deceased was in a relationship, the court was required to determine whether they had been living together in a relationship “as if they were married”. The Sheriff ultimately found that they had been. As a cohabitant ranks above siblings in the hierarchy set out in section 65, the deceased’s partner was therefore entitled to make the funeral arrangements.
Court proceedings can be both costly and emotionally taxing, making it all the more sensible to set out your wishes in advance.
Where funeral plans fit in
A funeral plan allows someone to pay in advance for their funeral and record their preferences with a funeral plan provider, usually in conjunction with a named funeral director. In practice, this can help ensure that certain arrangements are both set out and financially covered, reducing the immediate practical burden on loved ones.
However, it is important to understand that a funeral plan is not the same as making funeral wishes known in a legal context. Whilst the plan can be very helpful in setting expectations and managing costs, it does not override the legal position in Scotland as to who has the right to make decisions under the Burial and Cremation (Scotland) Act 2016.
The person with legal authority to organise the funeral will generally be expected to take the plan into account, but they still retain responsibility for the final arrangements.
For this reason, funeral plans work best when they are part of a wider conversation. Clients should ensure that their family or Executors know a funeral plan exists, understand its contents, and know how to access it quickly after death. Used alongside properly recorded funeral wishes and good estate planning advice, a funeral plan can provide reassurance and clarity.
How Thorntons can help you
At Thorntons, we recognise that conversations about death and funeral arrangements are rarely easy, and many people prefer not to dwell on them at all. Our role is to make that process as straightforward and sensitive as possible, whether by helping clients record funeral wishes as part of their estate planning or by guiding families and Executors through the practical and legal decisions that arise immediately after a death. By providing clear advice at what is often an emotionally difficult time, we aim to ease uncertainty, reduce the potential for disputes, and ensure that clients’ wishes are understood and respected.
If you are looking to put in place funeral wishes, or require advice as the Executor of an Estate, please contact us and we would be happy to help.
To find out more about expressing your funeral wishes, visit: Funeral wishes in Scotland: where to record them and what they mean in law | Thorntons Solicitors
