When might a cohabitee have a claim for financial provision on the death of their partner under section 29 of the Family Law (Scotland) Act 2006?
Cohabiting couples who are not married or in a civil partnership have no automatic succession rights in Scotland. However, where a deceased person dies intestate (without a valid will), and immediately prior to their death they were domiciled in Scotland and cohabiting with another person (the "cohabitee"), then section 29 of the Family Law (Scotland) Act 2006 allows the cohabitee to make an application to the Sheriff Court or Court of Session for an order for financial provision.
What amounts to cohabitation?
A cohabitant is an individual who is in a relationship that falls within one of the following definitions:
- a man and a woman who are living together as if they were husband and wife; or
- two persons of the same sex who are living together as if they were civil partners.
In determining whether the couple are cohabitants, each case will turn on its own facts and circumstances. However, a court must consider the following three factors:
- the length of the period during which the individuals lived together (although there is no minimum period, a relatively new cohabitation or a brief period of cohabitation is unlikely to be enough);
- the nature of the relationship between the individuals during the time they lived together (including, for example, how they divided domestic tasks; what emotional and physical support they provided to each other; how they dealt with childcare arrangements; and how they presented to others); and
- the nature and extent of any financial arrangements between the individuals during that period.
Where is a deceased person domiciled?
The concept of "domicile" should not be confused with "residence". Just because a deceased person resided in Scotland, does not automatically mean they will be domiciled in Scotland. Likewise just because they resided outwith Scotland, does not mean they will not have Scottish domicile. Only if they were domiciled in Scotland (and the deceased died intestate) can they claim financial provision under section 29.
In determining a deceased person's domicile (which can potentially change throughout their life), various factors will require to be taken into consideration, including but not limited to:
- where they were born;
- what nationality they are (including if they have dual nationality);
- where they resided for the majority of their life and at death;
- where they have family;
- where they had assets;
- where they were registered to vote; and
- where they had made arrangements to be buried or cremated.
A key determining factor is also likely to be what the deceased's intentions were in relation to their domicile.
What can be ordered?
It is important that legal advice is sought as soon as possible in order to consider the above factors and the merits of an application to the court for financial provision under section 29. If an applicant is able to prove that the deceased died intestate, was domiciled in Scotland, and that they were the deceased's cohabitee immediately prior to death, then an order may be made by the court.
The order can be for a capital sum payable out of the deceased's net intestate estate (following payment of debts, inheritance tax, and any legal or prior rights); or for the transfer to the cohabitee of specified heritable or moveable property from the deceased's estate.
However, section 29 expressly provides that an order cannot have the effect of awarding a cohabitee an amount which would exceed the amount they would have been entitled to had they been the spouse or civil partner of the deceased.
What will be taken into account by the court in determining the extent of the order?
Section 29 outlines the factors the court should consider in determining what order to make, including:
- the size and nature of the deceased's net intestate estate;
- any benefit to be received by the cohabitee as a consequence of the deceased's death (for example, insurance policy pay outs would not normally form part of the deceased's estate);
- the nature and extent of any other rights or claims against the deceased's estate; and
- any other matter the court considers appropriate.
The court therefore has a wide discretion in these matters. Each case will be decided on its individual facts and circumstances. Case law is limited and it is therefore difficult to say with any certainty what order a court might make in any individual case.
Time limit for claims
There is currently a strict six-month time limit for proceedings to be raised and served following the date of death. Section 78 of the Trusts and Succession (Scotland) Act 2024 ("2024 Act") will extend this to 12 months when the provision is brought into force by secondary enacting legislation, which is anticipated this year. When enacted this will still be a strict 12 month time-limit with no discretion for the court to consider a late application.
Even with an extended period to bring such a claim, it is imperative that cohabitees take legal advice urgently if they consider they may have grounds for such a claim, because there are a number of potential complications which could impact the ability to bring a timely claim, particularly when there are outstanding disputes.
The importance of having a will
Cohabitees should carefully consider whether or not they wish to put in place a will to provide for each other on death, so as to avoid the extra time, expense, distress, and uncertainty that would likely be involved in making a section 29 claim. There also remains the possibility that a cohabitee could be left unprovided for if they miss the deadline for making such a claim, which could still occur despite the time limit extension to 12 months when the 2024 Act provisions come into force.
It is important to note that where the deceased dies with a will, a cohabitant has no legal right to raise a claim against the estate under section 29. So, where an individual has made a will, but for whatever reason has decided to exclude their cohabitant, that person is effectively barred from making a claim against the estate. Therefore, it is imperative that a cohabitant not only has a will in place which provides for their cohabitee, but also ensures it is kept up to date to provide adequately for their partner (assuming this is their wish).
It is not uncommon to see cases where wills have been made before the couple met and started cohabiting, thus leaving the surviving cohabitee unprovided for on the death of their partner.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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