Cohabitants’ Rights on Death

Sally Nash Head shot BLUE 3 L website 2

The Scottish Government has recently published its response to the 2015 Consultation on the Law of Succession. For family lawyers, the part of that response which is of most interest relates to the rights of cohabitants on the death of their partner.

As matters stand, if a couple are not married or in a civil partnership and one of them dies with a will in place which makes no provision for their partner, the surviving partner has no right to make any claims against the deceased’s estate.

Since 4th May 2006, if the deceased dies intestate (in other words without a will) the surviving cohabitant has a right, under section 29 of the Family Law (Scotland) Act 2006 (“the 2006 Act”) to make a claim on their deceased partner’s estate. A claim can be made provided that before the death the deceased was domiciled in Scotland and cohabiting with their partner.  Even this has caused some controversy – for example, if the deceased were residing in a care home at the time of their death, were the parties in fact cohabiting? The answer to this must properly be yes, but it highlights one of the many issues which has arisen regarding the interpretation of the legislation

The claims that a cohabitant can make in those circumstances are either for a capital payment out of the deceased’s net intestate estate and/or for transfer to the survivor of such property (which can include the family home or moveable assets) from the estate.

Critically, any claim must be made within 6 months of the deceased’s death, failing which the claim will be time-barred, and the survivor will have lost the ability to claim.

When considering any claim, the court must have regard to the size and nature of the deceased’s net intestate estate; and any benefit received, or to be received, by the surviving cohabitant as a consequence of the deceased’s death from somewhere other than the deceased’s net intestate estate. An example of this would be the surviving cohabitant having being nominated to receive the death benefits from their partner’s pension.

What the court must also consider is the nature and extent of any other rights or claims on the net intestate estate (for example, the rights of a child to inherit from the estate, known as legal rights) and any other matter the court considers to be appropriate.

The legislation is clear that no order may have the effect of awarding a surviving cohabitant an amount which would exceed the amount the survivor would have been entitled to had they been the spouse or civil partner of the deceased.

When the consultation took place, section 29 came under a great deal of criticism. Two of the fundamental problems with the legislation as it presently stands are: –

1.The period for making a claim; and

  1. Lack of guidance regarding the quantification of a surviving cohabitant’s claim.

With regard to the period for making a claim, 6 months after the date of death is not, in my view, much time to give someone to raise and serve court proceedings following their partner’s death.

Firstly, on a human level, the surviving cohabitant will of course be dealing with the loss of their partner. To expect that they should take steps to engage solicitors and instruct the raising of potentially very litigious proceedings in such a short timescale is a big ask even for those who are in fact aware that they should be making a claim.  Sadly, I have seen many cases where it has not even crossed the surviving cohabitant’s mind to investigate where they stand before the 6 month period has passed. In such cases, by the time the surviving party seeks advice, the claim is time barred.

On a more technical point, any action by a surviving cohabitant against the deceased’s estate should properly be raised against the deceased’s executor. However, when someone dies without a Will, then no Executor will have been appointed by the deceased and as such an application must be made to the court for an executor dative to be appointed. In some cases that appointment is not made (whether deliberately or otherwise) within 6 months of the deceased’s death meaning that surviving cohabitants can find themselves with the further practical difficulty that there is no executor as yet appointed to raise proceedings against.  There is a method of dealing with this by raising proceedings against all known next of kin of the deceased, but this is unsatisfactory, not least because it adds further complication and expense to the process.

I am pleased to note that the Scottish Government have concluded that there is sufficient support to extend the period during which a claim can be made to twelve months from the date of death. As a practitioner operating in this field on a day to day basis, that is certainly a development which I welcome.

The other significant difficulty with Section 29 is the lack of certainty with regard to the level of provision a surviving cohabitant might expect to receive if they make a claim, and how that should be adjudicated upon and quantified. In one of the leading decisions on cohabitation claims on death, the comments from the bench included that “The Court’s discretion is so unfettered as to make it extraordinarily difficult, if not impossible, to project accurately what may be the outcome, at first instance, of an application under Section 29”. This succinctly sums up the difficulty for surviving cohabitants making claims, and those who are advising them. Cases have turned on their own facts and as such practitioners find it difficult to tender accurate advice to clients as to the extent of their claim, particularly when proceedings often require to be initiated (at least on the basis of current time scales) before the extent of the deceased’s net intestate estate has been established. The lack of guidance in the legislation in my view adds to further uncertainty and vulnerability at what is already a very difficult and emotional time.

The Scottish Government consulted on proposals from the Scottish Law Commission (“the SLC”) to instigate a two stage process for cohabitants’ rights on death. Stage 1 would be determining whether or not the couple were cohabitants based on a series of factors. If cohabitation was established, it was proposed that in determining what the surviving cohabitant would receive, the focus would be on the nature and quality of the parties’ relationship, and again a list of factors were proposed against which the nature and quality of the relationship would be assessed. It was proposed that the cohabitant’s claim should be adjudicated upon without reference to, for example, the size of the estate or indeed without reference to claims by other beneficiaries.  The SLC’s proposals were consistent however with the current legislation in recommending that a surviving cohabitant’s entitlement would never be more than that of a surviving spouse or civil partner.

Amongst those who responded to the consultation, it seems that there was little consensus on the SLC’s proposals, either in respect of how a cohabitant should properly be defined, or whether it would be appropriate for the nature and quality of the parties’ relationship to be the only factor. Concerns were expressed (quite rightly in my view) about, amongst other things, the impact on the children of the deceased cohabitant; the complexity of the scheme proposed and the fact that there are other important factors which should be considered when determining a claim.  It seems that on the issue of what a cohabitant should be entitled to claim following the death of their partner intestate, it is difficult to find an answer that universally appeals.

The Scottish Government has concluded that for the time being, no changes to the substantive laws in respect of cohabitants’ rights on death should be made. They have instead indicated that they “considered the time was right to consult on a fresh approach to cohabitants’ rights.” In the meantime however, cohabitants will continue to be left in an uncertain and unsatisfactory situation following the death of their partner, albeit that having more time to make a claim should assist practically with the process, once the relevant changes have been made to the legislation.

One final point of note is that a further matter under consultation was whether the rights of cohabitants to make a claim on death should be extended to situations where the deceased has died with a will in place. In response to the consultation, concerns were apparently expressed about the impact on testamentary freedom and against a background that a couple may have made a deliberate and intentional decision to cohabit because they did not want succession rights afforded to spouses and civil partners to apply to them.

I think the latter proposition is a difficult one. The reality is that although there is no such thing as “common law marriage”, when the Scottish Government brought the 2006 Act into force, not enough was done to make clear that apart from the rights afforded by that incoming legislation unmarried spouses and civil partners had no rights on separation or on death. I agree that testamentary freedom should not be interfered with lightly, but equally I think there are a lot of people who will not understand the intricacies of succession rights for cohabitants. There needs to be better dissemination of knowledge amongst the general public as to where spouses, civil partners and co-habitants stand in the event of death, whether with or without a will in place. For cohabitants, it underlines the importance of making a Will.

Following upon the Scottish Government’s response to the Consultation on Succession, the Law Society of Scotland launched its own consultation on 5th November on the rights of cohabitants (albeit looking at the wider issues of cohabitants’ rights on separation as well as on death). The consultation is aimed at the legal profession and “interested stakeholders” and closes on 3rd December. We at Gilson Gray will certainly be watching the outcome of that process with interest.

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 of the information contained in this blog, please seek specific advice from Gilson Gray.


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