Under Scots law, unmarried cohabitants have certain rights on the death of their cohabiting partner (often referred to as a “common law spouse” or “common law partner”). This may include the right to make a claim against their estate. If the partner was living with the deceased person in Scotland just before they passed away, and the deceased person did not have a valid will, they may have a claim.
I am acting as executor and the deceased’s cohabiting partner wishes to claim; what should I do?
If the deceased person’s cohabiting partner wishes to make a claim against the estate, they must raise an action within six months of that person’s death. If they haven’t met that deadline, they will probably not have a valid claim against the estate and you should not pay them anything from the estate.
If they have contacted you prior to the six month deadline to advise you they wish to claim, or if they have raised a court action within that timeframe, you should not distribute any assets from the estate until you have ascertained if they have a valid claim.
How much can the cohabiting partner claim?
It will be necessary for you, as executor, to ascertain the extent of the deceased’s assets and debts in order to work out what the cohabitant’s maximum claim against the estate will be. This involves writing to banks, building societies and other financial institutions to ask them for the value of the assets and debts. You may also need to obtain valuations of any house the deceased owned and of other assets such as cars, jewellery and artwork.
You will then use this information to prepare an inventory of the deceased’s assets and debts. An executry solicitor can assist you with the process of preparing the inventory of assets and debts. Your solicitor will then be able to advise you what the cohabitant’s maximum claim from the estate would be (which is the amount which a spouse or civil partner of the deceased would have received from the estate).
Do I have to go to court?
Once you know the maximum value of the cohabitant’s claim, your solicitor can advise you whether you can and should try to negotiate with the cohabitant to agree an amount they should receive from the estate (to try to settle the matter out of court), or whether you should leave it for the court to make that decision.
If you do become aware that a cohabitant is going to make a claim against the estate, you must not distribute any assets from the estate to any beneficiaries until the issue of the claim has been resolved. This is very important as, if you do distribute assets to beneficiaries before the cohabitant’s claim has been resolved, you may become personally liable for some or all of the claim.
Our Personal Law Solicitors in Edinburgh and Glasgow have experience of dealing with cohabitation claims and can provide you with specialist legal advice in relation to any cohabitation claim against an estate of which you are an executor.
