What happens if you die without a Will in Scotland? Rights of unmarried partners explained

The sudden death of Liam Payne last year at the age of just 31  left fans across the globe in shock. It has also cast a spotlight on a significant legal issue, it has come to light this week that he died without making a will.

Liam leaves behind his young son, Bear, from a previous relationship. At the time of his death, he was in a committed relationship with a new partner. Reports suggest that he was supporting his partner financially, and that among his personal papers was a note stating he intended to marry her within two years.

While there is no indication that Liam’s partner intends to make a claim on his estate, there has been speculation that she might do so. Under English law, an individual who has been financially dependent on the deceased person may be entitled to make a claim. This gives rise to the question of what would happen in a similar scenario in Scotland.

Under Scots law – as in the rest of the UK – the fact that Liam intended to marry his partner has no legal significance. As Liam died intestate (without a valid will), his estate will be distributed according to the laws of intestacy. However, it’s important to note that intestacy laws in Scotland differ from those in England and Wales.

Intestacy in Scotland

In Scotland, when someone dies without a will, their estate is distributed according to the Succession (Scotland) Act 1964The order of entitlement is specific and differs depending on whether the deceased had a spouse, civil partner, or children.

Since Liam Payne wasn’t married nor in a civil partnership, his partner would have no automatic right to inherit. While a spouse or civil partner would have certain entitlements under Scots Law, these do not apply to unmarried partners.

However, under Section 29 of the Family Law (Scotland) Act 2006, the  surviving partner of a cohabiting relationship can apply for financial provision from their partner’s estate when they die intestate or without a valid Will. There are other conditions that have to be met including domicile in Scotland. The court has the discretion to award a share of the estate, but the process is not automatic with a number of factors influencing the courts discretion.  It’s also worth noting that any such claim must be initiated within six months of the death.

Could there be a claim?

Potentially, yes. If the partner can demonstrate their relationship met the legal criteria of cohabitation (living together as if married or in a civil partnership), she could make a claim under Scottish law. However, such claims can be complex, emotionally taxing, and may involve contentious court proceedings. It is ultimately up to a judge to decide how much (if anything) the partner should receive – the only limit is that the court cannot award more than a spouse would have received.

Would marriage have made a difference?

Absolutely. In Scotland, a spouse is entitled to prior rights, which include:

• The family home (up to a certain value),
• Furniture and moveable household goods (again, up to a limit),
• A cash sum (currently up to £89,000 if there are children, or £50,000 otherwise),
• In addition, legal rights entitle a surviving spouse and children to fixed shares of the moveable estate, regardless of the Will’s contents.

This serves as a sobering reminder of how vital it is to make a Will – particularly for unmarried couples. Without a Will, even clear intentions can be left unrealised, and those closest to you—no matter how long you’ve been together – can be left with nothing, or far less than you intended

If you’re in a serious relationship and not married or in a civil partnership, it’s crucial to understand how the law in Scotland applies to your situation and to take legal steps to ensure your wishes are followed.

Find out more about our Family Law services here.

The information and opinions contained in this blog are for information only.  They are not intended to constitute advice and should not be relied upon or considered as a replacement for advice.  Before acting on any information contained in this blog, please seek solicitor’s advice from Gilson Gray.