Scots law recognises the concept of “cohabiting couples” or “unmarried couples” and cohabitants have certain rights on the death of their cohabiting partner.
Unmarried couples also have rights on separation. For more information, see our Cohabitation Rights Scotland page.
My partner has died, what rights do I have?
If you have been cohabiting with a partner and they have died, you may have the right to make a claim against their estate. This will depend on whether your cohabitant had a valid will when they died.
If your cohabiting partner had a valid will you should check whether they have left you any legacy. If they have not left you a legacy in their will, unfortunately, you will not be able to make a claim against the estate.
If your cohabiting partner died without a will, you may be able to make a claim against the estate. This might be for a cash sum, the transfer of an asset, or both.
In order to make a claim as a surviving cohabitant, your partner must have been domiciled in Scotland immediately before they passed away and you must have been living with them in Scotland immediately before they died. You must raise a court action in Scotland within six months of your partner’s death and you therefore need to decide very quickly if you wish to make a cohabitation claim against the estate to ensure you do not run out of time.
What award am I likely to receive if I make a cohabitation claim?
The court will first decide whether you can be treated as a cohabitant of your partner (which some people might refer to as a “common law partner”). This means you must have been living together as if you were married or civil partners. The court will take account of the length of time you lived together, the nature of your relationship and the nature of any financial arrangements between you. It is up to the court whether to class you as a cohabitant, but our personal law solicitors at Gibson Kerr can advise you on whether we think it is likely the court will consider you as a cohabitant.
If the court does decide you are a cohabitant of the deceased person, they will then decide whether you should be entitled to an award and, if so, how much you should be entitled to. There is a maximum amount you can claim from the estate and that is the maximum amount you would have received had you been married to or in a civil partnership with the deceased person.
Our personal law solicitors can advise you on the maximum value of your claim once we know more about your partner’s assets. If you were 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.
If you do wish to make a claim against your cohabiting partner’s estate when they die without a will, the important thing is to take specialist legal advice as soon as possible in order to ensure you can make your claim within the six months’ time limit.
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 making a cohabitation claim.