If I cohabit, what happens to my estate when I die?

More couples are living together in a relationship which resembles a marriage or civil partnership.  Cohabitation is more common now than with generations before us, with couples sharing outgoings, debts and responsibilities.

Although the dynamics may be the same as with a marriage or civil partnership, cohabiting couples are not afforded the same legal protection when a partner passes away without a Will.

What are Prior Rights?

Where a spouse or civil partner passes away, some or all of their estate will pass to their surviving spouse or civil partner. Even when there is no Will, succession law in Scotland provides clear rules on how an estate should be divided where the deceased was married or in a civil partnership; the estate is to be divided into 3 parts – Prior Rights (the surviving spouse or civil partner), Legal Rights (surviving spouse or civil partner and children) and any free estate. Therefore, even without a Will the surviving spouse or civil partner will still be entitled to inherit and is offered a degree of legal protection.

The same level of legal protection doesn’t apply to cohabiting couples. Where one half of the cohabiting couple passes away, leaving no Will, their estate is subject to the rights of succession and Scottish law doesn’t recognise cohabiting couples as having prior or legal rights.In these circumstances, rights of succession entitle children, parents or siblings of the deceased to inherit the entire estate. This can leave the surviving partner in a situation where they have no legal right to inherit any of their partner’s estate. The surviving cohabitant can make an application to the court to make a claim on the estate however this is time sensitive and can be a costly and lengthy process.

Specific assets

The home is often the most valuable asset couples have. For spouses and civil partners, even where the property is not jointly owned, the surviving spouse or civil partner will still most likely inherit the house. This can also apply to cohabiting couples where the title to the property specifically provides for this scenario. Issues arise however where the home is not jointly owned or where the joint title does not contain the appropriate provision. In these cases the surviving cohabitant doesn’t automatically inherit the property as it would form part of the deceased’s estate.

Shared finance is extremely common between couples and bank accounts are part of daily life. It can often be the case that the account is in one partner’s name but both partners regularly pay into it and use it for day to day expenses. This can also be problematic as any balance within that account would fall into the deceased’s estate and cannot be used until the estate is settled.

What can I do?

It is clear that the legal protection afforded cohabitants is not as extensive as that of spouses and civil partners in the event that one half of the couple passes away. Although there have been developments regarding cohabitation in Scotland, the current legislation is over 56 years old and it could be argued that it hasn’t quite caught up with modern life.

The best way to protect you and your partner is by creating a Will. Although it can be a difficult subject, planning ahead and preparing a Will helps to prevent stressful and often costly situations at what is already a difficult and upsetting time.

A Will allows you to leave legacies of property, money and other specific assets, allowing your partner to inherit. By having a Will in place you can ensure that your wishes are documented and that your partner’s legal interests are protected.

Get in touch – we’re here to help

Should you wish to discuss making or updating a Will, please do not hesitate to contact the Private Client team at Harper Macleod using the form below or call one of our offices on:

We have solicitors working from home across the country, ready to help in person or over the phone or on a zoom call.

We can provide the assistance you need to protect your assets and your loved ones. This will allow you to put your mind at ease, knowing everything is in hand.