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Cohabiting Couples The Importance of Having a Will

May 15, 2023 By Sarah Harper Estate Planning,Wills, Executry & Probate

Cohabiting Couples in Scotland

With an increased number of couples choosing to live together unmarried, some with no intention of ever getting married or entering into a civil partnership, it is important to know how cohabiting couples are viewed in the eyes of Scots Law.

In Scots Law cohabitees are seen to be a couple who are living together as though they are married or are civil partners, but they are viewed separately to legally married couples or civil partners.

Many unmarried couples are under the misconception that they have a ‘common law marriage’ having lived together for a long time and often having children together, but for whatever reason have not got legally married or entered into a civil partnership. With this misconception couples may believe that they are afforded the same rights a married couple is but this is not the case in Scots Law.

‘Common Law Marriage’ or ‘marriage by cohabitation with habit and repute’ as it was legally known, was abolished in 2006. Since then there is no situation in which cohabiting couples are afforded the same rights as couples who are legally married or have entered into a civil partnership. There are provisions in place that may allow cohabitees to apply for and gain similar rights to that of a married couple or civil partners but unlike a married couple or civil partners they are not automatic.

One specific situation where there is a very clear difference in the rights of a married couple or civil partners and a cohabiting couple is when it comes to inheriting from your deceased partner’s estate. To put it simply, in a cohabiting relationship, the cohabitees have no right to inherit from each other’s estate.

Of course, if their partner has a Will which names them as a beneficiary they will inherit what their partner intended them to, but that is the only scenario where they are guaranteed anything. That is why it is so important that cohabiting couples have a Will.

What happens is there is no Will?

If someone’s cohabiting partner dies intestate, which means they have died without a Will, their cohabitee is afforded no automatic rights to their property or any of their other assets.

Had they been married or in a civil partnership then under Scots Law the spouse/civil partner would be entitled to prior rights. Prior rights gives them an interest in the house/flat that they both lived in together up to the value of £473,000, the furniture in that property up to the value of £29,000, and an entitlement to £50,000 cash if there are children or £89,000 cash if there are no children. The spouse is then also entitled to their legal rights.

Children of the deceased are also entitled to legal rights so the value of legal rights depends on who has survived the deceased. If the deceased has children then their spouse/civil partner is entitled to one third of the moveable estate, so this excludes any property, and if there are no children then the spouse/civil partner is entitled to one half of the moveable estate. Any children of the deceased are also entitled to either one third or one half between them depending on whether there is a surviving spouse/civil partner.

A cohabiting partner does not have a right to any of the above, however they do have a right to apply to court and make a claim on their deceased cohabitant’s estate under the Family Law (Scotland) Act 2006. This claim must be made within six months from the date that their cohabiting partner died, but there is no guarantee on what they will be awarded or if they will be awarded anything at all.

It is entirely at the discretion of the court as to whether to make an award which could be financial or they could make an order for property to be transferred.

Depending on the circumstances they may be awarded something similar to what they would get if they were married or in a civil partnership, but in practice they tend to be awarded less than a spouse or civil partner gets from prior rights and legal rights. They can never be awarded more than a spouse or civil partner would receive.

When looking at granting an award there are a number of factors that the court may look at, such as the length of time the parties had been living together, the nature of their relationship and the nature and extent of any financial arrangements in place between the parties.

Similar to the old rules on deciding whether couples were married by cohabitation with habit and repute, it needs to be established that the couple were living together as a couple and not just simply living together. The above factors are therefore not an exhaustive list and there are many another factors that the court may take into account when deciding whether to make an award to the cohabitee.

Why making a Will is so important?

As mentioned above, making a Will is the only way to guarantee any certainty about who will inherit from your estate when you die. It is vital that everyone makes Will but is particularly important if you are cohabitees and as there are no guaranteed fall back provisions in place for each other if you don’t.

It is also important to ensure that you have an up to date Will which reflects your current wishes. Cohabitees can only make a claim on a deceased cohabitant’s estate is there is no Will. This means if there was the unfortunate situation where someone had an old Will, which was made prior to meeting and living with their cohabiting partner, and they never got round to changing it, there is nothing that can be done. The surviving partner will inherit nothing and they cannot make a claim.

Many feel that these provisions are outdated in a modern society where many more couples are choosing not to marry.

They afford no automatic rights to cohabiting couples, they have no guarantee, and they disadvantage those couples who choose not to marry or enter into a civil partnership. However, at the moment there are no immediate plans to make any changes to the provisions so the best advice is- to make a Will!

Make an appointment with Jones Whyte and our experienced Estate Planning Team will help you make a Will that reflects your wishes and ensures those who you want to inherit from your estate do.

For more information please contact us on 0800 292 2037 or complete our contact form to book an appointment.

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