Where there’s a will there’s peace of mind

Cohabiting couples need to sort out what’s going to happen when one partner dies, advises Agnes Mallon

It is increasingly common for couples to set up home together without any intention of getting married. At the last census, 11 per cent of the population were cohabiting, a figure which rose to 28 per cent among couples aged 25 to 29. Those who cohabit are often surprised (and disappointed) to learn of the legal consequences of their living arrangements after separation or on one partner’s death.

Long-term cohabitants often perceive their relationship as a “common law marriage” – a status that does not exist in Scotland. This misconception leads many to assume they are on the same legal footing as married couples when their partner dies. The Family Law (Scotland) Act 2006 Act introduced a set of basic rights to protect cohabitants, but by comparison they are much more limited.

If a deceased cohabitant leaves a will, the surviving cohabitant will only inherit if they are included as a beneficiary.this can cause much upset where a surviving cohabitant discovers an old (but valid) will bequeathing them little or nothing. As the law stands, the estate would be distributed in accordance with the terms of the will (with only spouses/ civil partners and children or remoter offspring having additional succession rights ).

If a cohabitant dies without a will, the surviving partner does not have an automatic right to inherit. Instead they are required to raise a court action seeking a discretionary financial award within six months of the date of their partner’s death. If that deadline is missed, their right to claim is lost and the estate is distributed to the deceased’s family in line with the law of intestate succession.

To succeed in this claim, a surviving cohabitant needs to prove that they lived with the deceased as though they were married or civil partners immediately before the death. The deceased must also have been domiciled in Scotland immediately before their death. The court has wide discretion in determining whether a relationship qualifies for a claim. It is influenced by factors such as the existence of a sexual relationship, emotional commitment, children of the relationship, shared finances and the degree of social acceptance of a couple’s status. The length of relationship will also be taken into account but there is no “qualifying” period.

The court can make awards of payment of a lump sum and/ or for the transfer of property (a house, land, as well as any moveable property). There is no set formula for calculating a “fair” award, the only rule being that it can never exceed the award to which a surviving cohabitant would have been entitled had they been married to the deceased.

In deciding what (if any) order should be made the court will take into account the size and nature of the estate and any benefit already received by the surviving cohabitant as a result of the death (including pension benefits, life insurance and the automatic transfer of property held in joint title with the deceased). The court will also consider the nature and extent of other rights against or claims on the deceased’s intestate estate, including children.

Parents should be aware that if they do not make a will, a cohabitant’s claim will be considered before a legal rights claim by their children. This can present a particular dilemma where there are children of a previous marriage or relationship who expected to inherit the entire estate.

For many couples agreeing to live together does not to their mind mean agreeing to acquire rights to claim in the other’s estate in lifetime or death. Similarly, the requirement to “prove” a relationship could present difficulties for younger or newer couples who do consider themselves to be “married”, in all but name.

To avoid the need for a court action in a time of grief cohabitants are well advised to put a Will and Cohabitation Agreement in place which records their wishes. And there are significant legal consequences for cohabitants who separate during their lifetime which are not dealt with in this article. Agnes Mallon is a Partner at Gillespie Macandrew LLP