There is no such thing as a “common law spouse” in Scotland. No matter how long you have lived together, shared a home, or raised children, an unmarried partner has no automatic right to inherit when their partner dies. This article explains where you stand and what you can do to protect the person you love.

What a spouse or civil partner automatically receives

In order to understand the position for unmarried partners, first it is useful to understand how the law treats married and civil partners. 

In Scots law, a surviving spouse or civil partner has an automatic entitlement to share in the estate, whether or not the deceased left a Will. The extent of that entitlement depends on whether or not a Will was made.

Where there is no Will

Where someone dies without a Will, their surviving spouse or civil partner is entitled to two sets of rights. The first are Prior Rights. Once Prior Rights have been met, the survivor is then entitled to Legal Rights along with any children. You can read more about Prior Rights and Legal Rights in our articles;

What are Prior Rights and When Do They Apply?
And
What are Legal Rights?

Where there is a Will

Where a Will was made, the surviving spouse or civil partner and any children are entitled to Legal Rights only. The remainder of the estate is then distributed according to the terms of the Will.

Where this leaves an unmarried partner

An unmarried partner has none of the rights afforded to afforded to married and civil partners. If your partner dies without a Will, you are left with two options, and neither is guaranteed to succeed.

1. The first is to negotiate a share of the estate with those who are legally entitled to inherit. There is no obligation on them to agree. If your partner was still married to a former spouse, or had not dissolved an earlier civil partnership, that person would be entitled to share in the estate ahead of you, along with any children.
2. The second is to apply to the court for an award from the estate. This route is only open where your partner died without a Will, and it carries a strict time limit: the application must be made within six months of the date of death. A sheriff then decides what, if anything, you receive, weighing up all the circumstances and any competing claims from the deceased’s family. There is no certainty about the outcome, and the process can be slow, stressful and expensive at an already difficult time.

The Simple Steps You Can Take

The most effective way to protect an unmarried partner from being excluded from your estate is for both of you to make a Will. Without one, the law decides for you, and it won’t include the partner you have chosen to share your life with.

A Will lets you decide who shares in your estate and in what proportions. Legal Rights claims by any children will still need to be accounted for, but once those are dealt with you can use your Will to divide the remainder of your assets as you see fit.

Cohabiting couples are often surprised to learn that a Power of Attorney, which allows your partner to act for you if you lose capacity, is not an automatic right, and it is well worth putting one in place as well.

You should also review your arrangements after any major change, such as moving in together, buying a home, or having children. 

Speak to Paris Steele, Solicitors in East Lothian

At Paris Steele, our Private Client team has many years of experience advising couples on Wills and on how Legal Rights affect an estate. If you live with your partner and want to be sure they are provided for, get in touch with us today to arrange an appointment at our North Berwick or Dunbar office.