Scullion News & Resources
Have you ever wondered what would happen to your partner if you were to die? Not many of us do, but it’s something we should all be thinking about. You may assume that because you have been together for ‘ages’ that you are now ‘common law’ partners and that your partner is provided for should something happen to you. Unfortunately, this couldn’t be further from the truth.
In Scotland, there is no such thing as a ‘common law’ partner and cohabiting couples do not have an automatic right to inherit from each other’s estates. Whilst there are provisions within the Family Law (Scotland) Act 2006 which deal with how your partner would inherit should you die without leaving a Will, they are by no means the most ideal way to solve the problem.
Your partner would be required to raise a claim with the Court within 6 months from the date of your death to seek payment of any sums from your estate. There is, however, no guarantee of the success of any claim brought. The strict 6 month time limit should be adhered to because as any claim brought out with the 6 months would not be considered.
When deciding whether or not to make an award to a cohabitee, the court will consider a range of factors. These include the size and nature of your estate, any benefits the surviving partner has already received as a result of the death (such as life insurance or pension benefits), the rights and claims of other beneficiaries, and any other circumstances the court considers relevant.
If the court decided to make an award in favour of your partner, it would be entirely up to them to decide what that award looks like. The court may decide to make a financial award to your partner for any amount, or it may decide to transfer specific property to your partner, or it can make any interim orders it thinks fit. It can do one or all of these things, but the point is that control rests entirely with the court.
The very best way to ensure that your partner is provided for should something happen to you is to make a Will. This allows you to narrate what you wish them to inherit in the event of your death and gives you the freedom to set out your particular wishes. Even having the simplest of Wills in place would prevent the heartbreak of your partner potentially being left with nothing. Do not let it happen to the one you love. Take back control and make a Will.
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