When it comes to inheritance, cohabitation myths can lead to some stressful and costly situations. Clair Cranston explains why Wills are so important for unmarried couples and what to do if someone dies without one.

“When I die, everything will go to my common law husband/wife”

“We’re practically married anyway.”

“My family know what I want to happen when I die”

These are all phrases that my colleagues and I hear on a regular basis, and sadly they’re often incompatible with the realities of law and family life. The consequences can be devastating for individuals or wider family.

The myth of the ‘common law’ spouse

Let’s take the first example – that everything will go to someone’s common law husband or wife when they die. In fact, the status of ‘common law’ spouse is an urban myth. Yes, there was once a law of “marriage by cohabitation and repute” but this was abolished in 2006.

Even before that, its application was very narrow. Only if you started living together and met very strict conditions before 2006 could that old law of marriage by cohabitation and repute still potentially be relevant. And the legal processes required to show that could be expensive, and ultimately unsuccessful.

The uncertain rights of cohabitees

The assumption that ‘We’re practically married’ and would therefore have the same inheritance rights as spouses or civil partners, is also a risky one.

If you’re living with a partner as a cohabitee and one of you dies, there’s no automatic entitlement for the other partner to inherit anything unless it is left to them in a Will. That applies even if you’ve lived together for a long time.

There’s a relatively simple way to address this, which is for both partners to make a Will. It provides certainty about what you want to happen to any money or property you have when you pass away and legally documents your wish for your partner to inherit.

If one of you already has a Will that reflects your circumstances many years ago, this could prevent your cohabitee inheriting on your death. It’s important to ensure your Will is up to date with your current situation.

It’s a family affair

If you or your cohabitee die without having a valid Will in place, is there anything the survivor can do to inherit anything? Yes, though it’s not straightforward.

  • Firstly, they would have to discuss the situation with relatives who would otherwise inherit under intestacy law (the law that applies when someone dies without a Will). Unfortunately, in times of shock and grief, family members may have very different views as to what their deceased relative would have wanted to happen to their money and property.
  • If these discussions don’t resolve matters within six months of the death, the surviving partner could raise a court action under section 29 of the Family Law Scotland Act 2006. This time limit is currently very strict and so are the processes involved in raising an action. There are plans to extend the time limit from six months to 12 months, but there’s not yet a date in place for this to happen.
  • Under a s29 claim, the surviving cohabitee can ask for a sum of money or a transfer of property, and the court decides how the deceased’s estate should be divided. To do this, it would weigh up aspects such as how long you were together, the nature of your financial arrangements, any other money the survivor has received (e.g. from a life assurance policy), and any other claims against the estate (e.g. from the deceased’s children).

There’s no certainty about how family discussions will play out or what a court will decide, and the process of reaching a decision could be damaging in financial terms, relationship terms or both. And all of this will happen at a time when people may still be grieving and vulnerable.

A better approach for everyone

Another benefit of making a Will is that you can clarify a much wider range of potentially stressful issues, such as your wishes for your funeral, who will oversee the administration of your estate or who will look after your children. Contrary to people’s assumptions, their families and loved ones don’t always know – or agree – on what they want to happen when someone dies!

If one of you has died without a Will we can assist in considering whether the surviving partner wishes to make a claim.

At Lindsays, our practical and empathetic Private Client and Family Law departments can guide you through all of these scenarios – whether you’re both still happily together, or after one of you has died.

We’ll listen to the details of your own situation, steer you away from urban myths and misconceptions, and help you put into practice your wishes (or your partner’s wishes) for money, property and loved ones. Promptly, efficiently and always with a human touch.