Cohabitation — what happens when your loved one dies without a will?

The ONS annual data has shown a rise in cohabitation in the UK over the last two decades. In fact, cohabiting couples who are not married or in a civil partnership has become one of the fastest growing family types in the UK.

How the coronavirus pandemic will ultimately impact these figures remains to be seen.

What we do know is that lockdown has seen some couples fast-tracking their relationships and moving in together quicker than they normally would have because of pandemic-related restrictions.

That aside, what are your rights if you live together but aren’t married or in a civil partnership? Here, we look at what happens in the worst of situations: if one of you dies and there’s no will.

The myth of common law marriage

First of all, there’s no longer such a thing as common law marriage in Scotland for new cohabitants.

This misconception may have been a result of the previous doctrine of “marriage by cohabitation with habit and repute.”

This form of irregular marriage applied in limited circumstances where, for example, a couple held themselves out to be married.

In any event, this was abolished by the Family Law (Scotland) Act 2006.

The same legislation introduced specific claims for cohabiting couples, who have different rights from married couples and civil partners. For example, cohabitants cannot seek financial support, known as alimentary provision, in the same way as a spouse and they don’t have the same automatic occupancy rights either.

What rights do cohabitants have on death if there’s no will?

Unlike a spouse or civil partner, a surviving cohabitant doesn’t have legal rights in the moveable estate or prior rights in the deceased’s estate, including property, furniture and money, if there’s no will. This is known as dying intestate.

And because, according to Family Law in Scotland, seventh edition, around 75% of the population dies without a will in Scotland, many surviving cohabitants could find themselves without any capital when their loved one dies.

Plus, if the person who has died owns the shared home, the survivor could also find themselves in the situation where the property’s taken away from them, if other family members have rights of intestacy.

Section 29 claims

If the partner you live with dies without a will, and you aren’t married or in a civil partnership, you may have a claim for a capital sum payment, or transfer of property from the estate.

You can do this by applying to the court. This has to be done within six months of the date of death.

This claim can be made under section 29 of the Family Law (Scotland) Act 2006, but the person who died has to have been domiciled in Scotland, and living with you, immediately before the death.

The court will consider a number of factors when it looks at a claim, including the size and nature of the net estate and any benefit you’ll get as a result of the death, such as pension or life insurance payments.

The court will also consider the nature and extent of any other rights against or claims on, the deceased’s intestate estate including any from children and grandchildren.

Incidentally, a will with provision for a cohabitant makes the deceased’s intentions clear; however, if there is a will with no such provision, then there’s no remedy available to the surviving partner.

As ever, the best advice is to have a will. But, that’s always easy to say in hindsight. When there isn’t one, a Section 29 award can mean a considerable sum of money, and perhaps some financial security, for you if you’ve been cohabiting.

But beware, it’s not an automatic right, so it’s worth seeking advice early on.