Call for legal change so unmarried partners can inherit without a will
● Lawyers say current system can create ill-feeling and cause delay
Lawyers have called for a change in the law to allow unmarried people to inherit from a deceased partner who leaves no will.
The Faculty of Advocates said reforms should be made so that cohabitants have an automatic entitlement to inherit, allowing them to continue living in the family home.
At present, the surviving partner of couples who live together, rather than marry or enter a civil partnership, has to apply to a court to obtain any financial provision in intestacy, the situation where someone dies without leaving instructions about what should happen to their property.
The Scottish Government is currently carrying out a consultation on the Law of Succession, asking whether cohabitants should have to continue applying to the courts.
The Faculty said the current system could create ill-feeling between heir and cohabitant, and involve expense, uncertainty and delay.
In its response to the consultation, it said: “None of this is consistent with a modern efficient and fair law of inheritance in circumstances often of great stress to the survivors of the deceased.
“Succession law is meant to be clear, straightforward and efficient. Requiring applications to the courts as a matter of course for cohabitants is undesirable for all of these reasons.”
It said cohabitation was now a common feature in our society, and there should be an automatic entitlement to inherit, but not to the same extent as a spouse.
It added :“Cohabitation should not be equated to marriage or a civil partnership. We do not agree with the proposals that after a certain period of time a cohabitant should have the inheritance rights of a spouse. That would not be in line with general expectations either of society or cohabiting couples. It would, in effect, create marriage for the purposes of succession or inheritance law.”
The Faculty suggested a oneyear minimum qualifying period for cohabitation, and said a cohabitant’s entitlement to inherit should be on condition that the deceased was not married or in a civil partnership at the time of death.
For intestacy more generally, it said it favoured the suggestion of adopting principles similar to those of Washington State in the United States, where the division of property when a spouse dies allows for distribution of the wealth generated within a marriage/civil partnership.
Elsewhere in the response, the Faculty said a convicted murderer should be disqualified from being executor to their victim’s estate, and that step-children should not have the same rights as biological or adopted children to inherit in intestacy.