by Fraser McDonald, Trainee Solicitor
On 17 February 2019 the Scottish Government released a consultation on the law of succession. This builds on the government’s 2015 consultation which sought views on wide-ranging changes proposed in the Scottish Law Commission’s Report on Succession published in 2009.
While the government consultation seeks views on several issues, this blog post focuses on the questions surrounding cohabitants’ rights for two reasons:
- As observed in the consultation document, the number of couples who choose to live together without marrying or entering a civil partnership has risen in Scotland and is likely to continue to rise over the coming years. It is important that cohabiting couples are aware that they do have certain rights on succession and realise the scope of these rights and their potential expansion.
- Cohabitants’ succession rights are very much on the radar. The Law Society of Scotland has recently consulted on the subject, and on 28 February 2019 the Scottish Law Commission announced its plan to review the law of cohabitation on a wider basis over the coming year.
With a number of bodies pitching the reform of cohabitants’ rights, it is a pertinent time to ask if the current law fit is for purpose, and what changes might be made.
The status quo
Under current law, where a cohabiting partner dies intestate (ie without a will), the surviving partner may claim for ‘reasonable financial provision’ from the estate. This is not an automatic right; an application must be made to the court under section 29 of the Family Law (Scotland) Act 2006 within six months of the date of death. The court has the discretion to determine what the surviving partner may claim on intestacy, although this cannot exceed what a surviving spouse may claim.
It is documented, not least in the consultation itself, that many lawyers view section 29 as deficient. First, the time limit of six months has the potential to filter out deserving claims. Second, once a claim is made, there is no clear methodology for the court in judging what sum a cohabitant should be awarded.
The proposed changes
The government seeks views on schemes that could replace section 29. One of the potential schemes for adoption is that proposed in the 2009 report. Such a scheme would consist of a two-step process. The first stage would be to decide whether the claimant is a cohabitant using an evidence-based test. If the claimant qualifies as the deceased’s cohabitant, the court would then determine a percentage to award the cohabitant where 100% equals the sum the cohabitant would have been entitled to had they been the spouse of the deceased.
To illustrate, in a long, cohabiting relationship where the couple was interdependent, the percentage may be close to 100% and the cohabitant would be awarded exactly the same as they would have done had they been married to their deceased partner. Among other possible changes, the time limit for making such a claim could be extended and the priority of a surviving spouse over a surviving cohabitant may be brought to an end.
A step further?
As described above, a cohabitant can currently only make a claim where their deceased partner did not leave a will. Where the deceased left a will, the surviving partner has no claim whatsoever even though they may have been bequeathed nothing in the will.
However, the 2009 report envisaged that a cohabitant could make a claim for financial provision even where their deceased partner made a will. The possibility of a claim where there is a will is a much more difficult proposition. A testator may have made a conscious decision that they did not wish their cohabitant to inherit any of their estate, much in the same way that it was a conscious decision not to marry.
For the time being, the consultation does not propose any changes to the established position. A cohabiting partner will not be able to make a claim for financial provision where the deceased left a will. It remains that the easiest way for an individual to determine what happens to their assets after death is to make a will. It is then important to keep that will up to date in order to accurately reflect circumstances and relationships as they evolve over time.