Cohabitation Rights on Death in Scotland: What Are Your Rights if Your Partner Dies?
What Happens if Your Partner Dies and You Were Not Married?
Losing a partner is one of life's most difficult experiences. Alongside the emotional impact of bereavement, many people are left wondering what will happen to the home they shared, whether they have any financial rights and whether they are entitled to inherit from their partner's estate.
If you were living together but were not married or in a civil partnership, the legal position in Scotland is very different from that of a surviving spouse.
Many people believe that living together for a number of years creates a "common law marriage". Unfortunately, this is one of the most common misconceptions in Scottish law.
While cohabitants do have certain legal rights following the death of a partner, those rights are limited and strict time limits apply. Seeking legal advice promptly is therefore essential.
Does a Common Law Spouse Inherit in Scotland?
In short, no.
There is no legal status of "common law spouse" or "common law marriage" in Scotland.
Living together for many years does not automatically give you the same inheritance rights as a husband, wife or civil partner.
This often comes as a surprise to people who assumed that the length of their relationship gave them the same legal protection as a married couple.
If you are a surviving cohabitant, your rights are different and may require a court application.
Do Cohabitants Have Any Rights When Their Partner Dies?
Yes, but they are more limited than the rights available to spouses and civil partners.
Under the Family Law (Scotland) Act 2006, a surviving cohabitant may, in certain circumstances, apply to the court for financial provision from their late partner's estate.
Unlike the position for married couples, there is no automatic entitlement to receive part of the estate. Instead, the court has discretion to decide whether an award should be made and, if so, the amount.
Every case depends on its own circumstances.
Who Is Considered a Cohabitant?
Whether someone is legally recognised as a cohabitant depends on the facts of the relationship.
The court may consider matters such as:
• How long you lived together.
• The nature of your relationship.
• Whether you shared a home.
• Your financial arrangements.
• The overall circumstances of your life together.
There is no minimum period of cohabitation that automatically creates legal rights.
How Does the Court Decide Whether to Make an Award?
The court will consider a range of factors when deciding whether a surviving cohabitant should receive financial provision.
These may include:
• The nature and duration of the relationship.
• The size and value of the deceased's estate.
• The financial needs and resources of the surviving cohabitant.
• The interests of any children or other beneficiaries.
• Any other circumstances the court considers relevant.
Each case is decided on its own facts, which is why specialist legal advice is so important.
What If My Partner Left a Will?
Even if your partner made a Will, you may still have questions about whether you have any legal rights.
The answer depends on the particular circumstances of the estate and the law that applies to your situation.
If you believe you have been left without reasonable financial provision, it is important to obtain legal advice promptly to establish whether you may have a claim.
Is There a Time Limit for Bringing a Claim?
Yes.
A surviving cohabitant must normally raise any court application within six months of the date of death.
This is a strict legal time limit and should not be overlooked.
If you delay seeking advice, you may lose the opportunity to pursue a claim altogether.
For that reason, it is always advisable to speak to a solicitor as soon as possible after your partner's death.
Why Early Legal Advice Matters
The law relating to cohabitants is very different from the law that applies to married couples and civil partners. Many people do not discover this until after their partner has died.
Obtaining legal advice at an early stage can help you:
• Understand whether you may have a legal claim.
• Assess the strength of your position.
• Ensure important time limits are not missed.
• Gather the information needed to support your application.
• Explore whether matters can be resolved without unnecessary court proceedings.
Early advice can provide clarity at what is often an extremely difficult time.
Frequently Asked Questions
Does my unmarried partner automatically inherit my estate?
No. Simply living together does not give a surviving partner an automatic right to inherit under Scottish law.
Is common law marriage recognised in Scotland?
No. There is no legal status of common law marriage in Scotland, regardless of how long a couple have lived together.
Can I make a claim if my partner dies?
Possibly. A surviving cohabitant may be able to apply to the court for financial provision, but there is no automatic entitlement and every case depends on its individual circumstances.
How long do I have to make a claim?
A court application by a surviving cohabitant must normally be raised within six months of the date of death. Because this time limit is strict, you should seek legal advice without delay.
Will the court automatically award me part of the estate?
No. The court has discretion to decide whether an award should be made and will consider all of the relevant circumstances before reaching a decision.
Why Choose Seaward Law?
We understand that the death of a partner is an incredibly difficult time, particularly where there is uncertainty about your legal rights.
We advise surviving cohabitants on claims following the death of a partner. We provide clear, practical advice, explain your legal options and, where appropriate, represent clients in court proceedings.
Because the time limit for making a claim is short, obtaining specialist legal advice as early as possible is important.