The coronavirus pandemic has sadly claimed the lives of many people in Scotland before their time. Someone who is taken ill suddenly may not have the opportunity to make a will. If your partner has died without a will, you may be left wondering what your rights are.
If you were living with your partner in Scotland just before they died, but you were not married or in a civil partnership, you may be classed as their “cohabitant”. In these circumstances, and if they have not left a valid will, you may be able to make a claim against the estate. This might be for a cash sum, a particular asset, or both.
How do I qualify for a cohabitant’s claim?
In order to make a claim against an estate as a cohabitant, you have to raise a court action within six months of your partner’s death. This is a tight timescale and you should therefore seek legal advice as soon as possible.
In considering your claim, the court will first decide whether you can be treated as a cohabitant of your partner. This means that you must have been living together as if you were married or civil partners. The court will consider the length of the time you have lived together, the nature of your relationship and the nature of any financial arrangements between you. The court will then decide whether they agree that you and your partner were cohabitants and, if so, whether you should be awarded something from the estate.
How much can I claim as a cohabitant?
The maximum amount a cohabitant can be awarded from the estate is the amount which you would have received had you been married to, or in a civil partnership with, the deceased person. This will depend on the assets your partner owned. For example, if you are living in a house owned by your partner at the time they died, you may be able to claim to receive the house and furniture up to a certain value. You may also be able to claim a cash amount from the estate. The maximum amount will vary depending on whether your partner had children or not.
Our personal law solicitors at Gibson Kerr can advise you on the maximum value of your claim once we know more about your partner’s assets. It is important to understand that you may not necessarily receive the maximum amount of the award from the estate; it will be for the sheriff to decide what the award is. The sheriff will take account of various factors, such as whether you have received any other benefit from the deceased person, like a pension benefit, and who else will inherit from the estate.
By working out the maximum value of the estate, we can help you decide whether you should proceed with a claim against the estate.
Is it always necessary to go to court to make a cohabitation claim?
Depending on who the executors and beneficiaries of the estate are, it may be possible to negotiate with them to agree that you should receive assets or money from the estate. An amicable agreement reached out of court will save both parties the time, expense and stress of pursuing a court action. We can act on your behalf in the negotiation.
Unless the agreement is made and signed before the six month time limit, we may advise you to raise the court action to protect your position. The court action can be dropped if an agreement is later reached.
Can I make a claim as a cohabitant if my partner did leave a will?
If your partner has made a valid will, you should check if they have left you a legacy. If they have made a will, but not left you a legacy in it, unfortunately you cannot make a claim against the estate as a cohabitant. This is because cohabitants’ claims can currently only be made against estates where there is no will.
What is the impact of the Covid-19 pandemic on the process?
With the continued emphasis on remote working and some local lockdowns in place, it may be difficult to meet with a solicitor in person. However, many solicitors’ firms are continuing to operate and may be able to offer you a remote meeting. At Gibson Kerr, our solicitors are working remotely. We will be happy to have an initial meeting with you over a video call, using video software such as Zoom or Skype. If you do not have video facilities, we can have a telephone meeting with you.
We understand that this will be an emotional time for you. Our honest, practical advice can help you to decide whether to make a claim against the estate. And we will guide you through that process if you do. If you require assistance with making a claim against your partner’s estate, or deciding whether to make a claim, please do not hesitate to contact our personal law solicitors.