Insights

Where there’s a Will … or a Court Order … there’s a Way : Provision for Cohabitants on Death

What is the Issue?

The number of couples choosing to cohabit without marrying or entering a civil partnership has continued to rise in recent years. As a result, it is important to be aware of the legal position of cohabitants under Scots law, particularly as there has been some public confusion on the matter.

A paper last year by the Scottish Law Commission noted, amongst other things, the differing public understanding of financial provision for cohabitants and the widespread public belief that ‘common law marriage’ still exists in Scots law. Such a doctrine no longer exists.

The Current Law

The current law for cohabitants can be found in the Family Law (Scotland) Act .

Surviving cohabitants in Scotland do not have the same protections against disinheritance as children, spouses and civil partners. Instead, under section 29 of the 2006 Act, cohabitants must apply to the court for provision from their deceased cohabitant’s estate.

For a successful claim under section 29, the three main requirements are as follows:

(1) the deceased cohabitant must have died without a will;

(2) been domiciled in Scotland immediately before their death;

(3) and the parties must have been cohabiting immediately prior to the death.

The court can order financial provision or the transfer of property from the deceased cohabitant’s estate. It also has total discretion in determining the size of any award, provided that the award does not exceed what the cohabitant would have received if they had been married to the deceased.

A claim under section 29 must also be brought within six months of the date of death. The Scottish Government has said that it will legislate to increase the period for bringing claims from six months to a year. However, legislation has not yet brought this extension into force, meaning that tight timescales apply to any cohabitant wishing to make a claim. These timescales can easily be overlooked.

Where there’s a Will, there’s a Way

Wills are flexible enough to deal with all sorts of family situations. By putting one in place, cohabitants can dictate how their assets will pass on their death and ensure that suitable provision is made for their surviving cohabitant.

This can help avoid, firstly, the potentially stressful process of applying to court under section 29 of the 2006 Act at an already difficult time and, secondly, the undesirable situation of leaving the surviving cohabitant in a difficult financial situation. Wills are, therefore, to be recommended for all cohabiting clients.

For more information, please contact a member of our Private Client team or consult our online Wills Tool - Settify.