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It is now very common for couples to live together who are not married or in a civil partnership. Such couples are defined as “cohabitees”.  

Most cohabiting couples assume that they would inherit from their partner’s estate in the event of their death. Unfortunately, this may not be the case.

In the event that there is no Will, the estate will be administered in accordance with Scots law.

Firstly, the law will determine who has the right to be appointed as your Executor. The Executor is the individual who is responsible for dealing with your estate. Generally speaking, there is a strict order of preference, and the nearest blood relative would be the person with the right to be appointed. The Court will not take into account your relationship with that person, therefore there is a potential risk that an estranged family member would be responsible for dealing with your estate. Your partner would not be entitled to apply to be appointed as your Executor.

If there is no Will, the law would also determine who is to inherit the estate. Whilst a spouse or civil partner would have automatic rights to an estate, there are no such automatic rights for cohabitees.  

The current law for cohabitee claims is contained in section 29 of the Family Law (Scotland) Act 2006 and has been subject to much criticism. A cohabitee has 6 months from the date of death to make an application to the Court for a share of the estate, but only if the deceased did not have a Will. This is a strict time limit- if the claim is made out-with the 6 month period then the Court has no discretion to allow the claim to continue.

A claim can be made if the partner died without a Will, the couple were living together as husband and wife or civil partners immediately before the death, and the partner was domiciled in Scotland.

If a claim is made, the Court has complete discretion as to what amount (if any) should be awarded to the cohabitee. The Court will take into account the size of the estate, any other benefits which the cohabitee may have received from the death and any claims other individuals may have against the estate.

If you have a cohabitee then a Will is of critical importance. This will ensure that your partner will inherit from your estate, and that they could be appointed as your Executor.

Making a Will with Thompsons is a very straight forward process. If you wish to prepare a Will, or update a Will you previously prepared, then please get in touch with one of our specialist solicitors on 0800 0891 331 who would be happy to assist.

Blog by Amy Wardrop, Private Client Solicitor

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