Case highlights will dilemma

Recent publicity about an English Court of Appeal ruling on the rights of unmarried couples has highlighted the misunderstanding that many people have about their rights following their partner’s death.

The case concerned an appeal by a bereaved woman, Jakki Smith, who was unable to claim damages following the death of her long-term partner because she was not his spouse. The court concluded that discriminating against unmarried couples in this way could be contrary to human rights legislation. Although the case only applies in England and Wales, the rights of unmarried couples in Scotland on death will come as a surprise to many and highlight the importance not just of having a will, but also reviewing existing wills. In the same week as the ruling, a poll showed that roughly two-thirds of unmarried couples do not realise that the law treats them differently from married couples on death.

In Scotland, the rights of unmarried couples following a death are relatively straightforward. In the absence of a will, the surviving partner will not be automatically entitled to anything from the estate. The Family Law (Scotland) Act 2006 allows a partner to apply to the court for a share of the estate, but a claim must be lodged within six months of the death and the amount of the award is entirely at the court’s discretion. Claims can only be made by individuals who were “cohabiting” with the deceased in the legal sense, meaning living together as if married or civil partners. This will be a question of fact but is another hurdle which will need to be overcome.

Claims under the Act cannot exceed the amount a spouse or civil partner would have been entitled to. At present, in the absence of a will, a spouse or civil partner is entitled to the deceased’s interest in the home the couple shared (up to a value of £473,000); contents of that home up to the value of £29,000; cash of £89,000 (or £50,000 if the deceased left surviving children) and a one-third or onehalf share of the remaining moveable estate. Couples with larger estates cannot rely on the 2006 Act if they wish to ensure their whole estates pass to the surviving partner. Similarly, married couples with larger estates cannot rely on the default rules which apply in the absence of a will.

Couples should also be aware that the provisions of existing wills, perhaps prepared many years ago during a previous relationship, will generally be followed if they are not updated. If a will exists, a surviving partner will not be able to make a claim under the 2006 Act. Although the Scottish Law Commission considered changes to the law in 2015, until such time as unmarried couples’ rights are changed, the best way to provide for a loved one on death is to ensure that a will is in place. l Magnus Mackay, associate, private client, Stronachs LLP