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Co-Habitants’ Right to Claim Financial Provision on Death of Partner

For some time now a spouse in Scotland, and more recently a civil partner, has been entitled to a share of his/her predeceasing spouse or civil partner’s estate.  The Family Law (Scotland) Act 2006 provided that co-habitants have, in certain circumstances, a right to claim from their late partner’s estate.
An application to the Court can be made by the survivor if 4 conditions are met;

The deceased died without leaving a Will;
Immediately preceding his/her death the deceased was domiciled in Scotland;
The court deems that the co-habitant and the deceased were co-habiting immediately prior to the death, and
The claim must be made by the co-habitant within 6 months of the date of death.

If co-habitation is found to have existed by the court then the claim is on the “net intestate estate”.  This is the estate after tax, debts and legal and prior rights if any, of the surviving spouse. 
The court can order payment of a capital sum or a transfer of property from the estate.  The award amount cannot exceed the maximum which a surviving spouse or civil partner would have been entitled to had the couple been married/in a civil relationship.  The award to the surviving co-habitant can take precedence over the legal rights of the deceased’s children whether these are children of a previous marriage or of the co-habitation, and the deceased is unlikely to have intended the conflict that these competing claims may cause. Ultimately it will be the court taking into account all the facts pertaining to these relationships that will decide the level of these awards.
There is no fixed amount, compared to the position with the laws of intestacy for surviving spouses or civil partners. However, following the increase in the prior rights which took place for deaths on or after 1st February 2012 the amount of an award to a co-habitant could be increased to these levels, although will not exceed them.
The court can take into account any benefit received or to be received by the co-habitant on, or in consequence of, the deceased’s partner’s death. Competing rights against, or claims on the estate can also be taken into account giving the court extremely wide discretion. Modern domestic relationships can be varied and complex so this discretion is necessary. It does however make it difficult for solicitors to advise a claimant as to the likely level of award. This advice will be important not only to claimants but also to the deceased’s executor and  beneficiaries.
The executor is the “defender” of any claim raised by a co-habitant. An executor, usually next of kin, therefore has to be appointed before the action can be raised.  The family, in the hope of defeating a claim, may resist making the appointment of the executor within the six months of the date of death. The co-habitant can try to raise an action seeking a specific form of decree which constitutes a debt against the estate and if successful can, in a second action, seek confirmation as an executor creditor to claim against the estate. 
The administration of many intestate estates will be delayed while it is determined if a co-habitant’s claim is being made, creating uncertainty and anxiety at a time when all parties may still be grieving.
 However welcome the recognition of the rights of co-habitants has been, the strict time limits applicable to the instigation of claims and the court’s discretion in relation to its interpretation of the legislation and to the awards made, still means that there is no substitute for a suitable Will being in place.
For further information or advice relating to co-habitation rights please contact Shona Brown.

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