17 May 2019
New rights should be given to cohabitants to inherit from a deceased partner who leaves no will, the Faculty of Advocates has told the Scottish Government.
At the moment, the surviving partner of a couple who live together, rather than marry or enter a civil partnership, has to apply to a court to obtain any financial provision in intestacy.
The faculty believes that changes should be made so that cohabitants have an automatic entitlement to inherit if there is no will, allowing them at least to continue living in the family home.
The Scottish Government has concentrated on intestacy in a consultation on the law of succession, and asked whether cohabitants should continue to have to apply to the courts.
The faculty answered "no" and said the current system could create ill-feeling between heir and cohabitant, and involve expense, uncertainty and delay.
It added: "None of this is consistent with a modern, efficient and fair law of inheritance in circumstances often of great stress to the survivors of the deceased.
"Succession law is meant to be clear, straightforward and efficient.
"Requiring applications to the courts as a matter of course for cohabitants is undesirable for all of these reasons."
The faculty said cohabitation was now a common feature in society, and there should be an automatic entitlement to inherit, but not to the same extent as a spouse.
"Cohabitation should not be equated to marriage or a civil partnership.
"We do not agree with the proposals that, after a certain period of time, a cohabitant should have the inheritance rights of a spouse.
"That would not be in line with general expectations either of society or cohabiting couples. It would, in effect, create marriage for the purposes of succession or inheritance law.
"If the approach to intestate succession overall is to try and reflect what the deceased could or would have anticipated happening with their estate, it can probably be said, safely, that there would be a general expectation that the survivor in a stable cohabiting relationship should be able to continue to live in the home shared with the deceased after his/her death and not suffer possible eviction at the instance of the deceased's children, siblings or parents or other heirs with the consequences that may bring.
"We take the view that there should be some automatic entitlement to inherit...our favoured option would be for a cohabitant to inherit a life-rent over the deceased's title in the principal home of the cohabitants."
A life-rent would allow the cohabitant to have the benefit of the property for life, without the right to dispose of the property.
The faculty suggested a one-year minimum qualifying period for cohabitation, and said a cohabitant's entitlement to inherit should be on condition that the deceased was not married or in a civil partnership at the time of death.
If you have any questions about estate planning, wills or cohabitation agreements, Aberdein Considine has solicitors across Scotland who can help.