Upon the death of my cohabitant without a will, what are my legal rights?
A surviving unmarried partner is not automatically entitled to collect money from the estate of their deceased cohabitant in the absence of a will. This may make getting through a trying time more difficult. If there is no will in place, the surviving cohabitant may petition the court for monetary assistance following the death of the dead.
How can I submit a request?
By requesting a lawyer to apply on your behalf, you can ask the court for a benefit from the estate of the decedent. Based on intestacy regulations following an application, the court will determine whether or not you will inherit from the decedent.
Should a successful application come about, what do I inherit?
Should the court so decide, you could be entitled to get a capital settlement from the net estate of the deceased. The order could also declare that you acquired certain assets from the estate of the decedent. The sequence cannot give you more money than you would have obtained had the dead been your husband or in a civil union with you.
Should my partner pass away, what considerations will the court take?
Convincing the court that you lived with the deceased means living as if you were married or in a civil relationship.
Finally, your application will all be taken into account by the court; the size and type of the decedent’s net estate, any benefit you have received or will receive as a result of the death (for instance, if heritable property passes to you through the title deeds or if you receive benefit through a life insurance policy or pension), will all be taken into account by the court.
Any other matter the court finds relevant; and the existence and breadth of any extra claims or rights against the estate of the dead (maybe including claims from other family members).
The late civil partner is also required to have lived in Scotland at the time of death.
When do I turn in my application?
Six months following the death of the deceased, the court has to have the application from the surviving partner. Therefore, it is imperative to contact your solicitor and receive legal advice as soon as possible to guarantee that the application may be filed within this short period.
What would happen if one of an unmarried couple’s partners left a will?
If your cohabitant left a will, you cannot ask the court for financial provision.
What can I do to prevent intestacy?
Our advice remains to ensure you have a current will in place. Including a clause for your cohabitant will give you and your partner the guarantee of inheritance that your affairs are in order and that their needs will be met. This helps a court process with a limited timeline at a trying period to be avoided.
Please be aware that the material on this blog solely refers to Scotland.
Highly esteemed lawyers at Clarity Solicitors have advised on challenging trusts and estates in both our personal and family teams as well as our dispute resolution teams. Knowing your legal rights can allow you to contact us.
