Cohabitation and Succession Rights – Part 1

The present law in the area of cohabitation is governed by the Succession (Scotland) Act, 1964 in conjunction with section 29 of the relatively recent Family Law (Scotland) Act 2006. As we turn into 2016, this would appear to be a good point to review a law which has been with us for a decade.

Since the 2006 Act came into force, there has been comparatively little in the way of caselaw to flesh out how the provisions should be applied in practice. Section 29 of the Act introduced, for the first time, the concept of cohabitees obtaining access to succession protection previously only available to surviving spouses and children. However, it is not an automatic right and it is mandatory that any claim is raised in the court system within 6 months of date of death. That fixed time limit is unhelpful. It can frequently be the case in executries that the amount of the estate and its heritable and (particularly) moveable components may not have been correctly determined within that period of time. Yet, that is precisely the kind of information which is required by a cohabitee in order to know whether or not it is worthwhile incurring the legal cost to raise the claim in the first instance.

Even if the court is persuaded that a cohabitee has a legitimate claim in principle, it can only make the order for payment out of the deceased’s net intestate estate. Two matters arise from this.

Firstly, the provisions only apply to a surviving cohabitee if the deceased died without a will. If the deceased made a will prior to the cohabitation, then the cohabitee has no claim under the 2006 Act. Clearly, if the deceased made a will during the cohabitation to include their cohabitee as one of their beneficiaries, then the cohabitee still cannot rely on the 2006 Act but will nonetheless get some bequest.

Secondly, there is a narrow definition of the term “net intestate estate” contained within section 29 (10). The definition states that “net intestate estate” means only so much of the estate as remains after the satisfaction of tax, debts and the legal rights and prior rights of any surviving spouse or civil partner. The legal and prior rights of any surviving spouse or civil partner can be substantial. Presently, the surviving spouse is entitled to the dwelling house in which the surviving spouse or civil partner lives up to the value of £473,000. They are also entitled to furniture and furnishings in that dwelling house up to a maximum of £29,000. Finally, they are entitled to a cash sum of £50,000 if the deceased had surviving children or £89,000 if the deceased did not have children. That is a potential sum of up to £552,000. In most cases, this is likely to exhaust the deceased cohabitee’s “net intestate estate” if the deceased did not divorce or enter into a formal separation agreement with their estranged spouse or civil partner before or during the period of cohabitation so as to mitigate the effect of the legislation.

The complexities of the law inevitably mean that early legal advice is necessary if you find yourself in this situation especially bearing in mind the 6 month cut-off point. It is best not to leave it to the last minute or you might lose the chance of making a claim.