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Why cohabiting partners REALLY need a Will

This month Jane Collins-Whyte, an expert in Will-writing and executry administration explains why it is essential for cohabiting couples to put Wills in place.

Nowadays it is commonplace for people to live and own property together without being married or civil partners; however, despite there being some developments in the law around cohabitation, the law of succession in Scotland has not kept pace with the times and cohabiting partners are still very exposed in the absence of a Will.

If a married person (or someone in a civil partnership) dies without a Will, the rules of intestacy offer a degree of protection for the survivor, including ‘Prior Rights’ which entitle the surviving spouse or civil partner to the deceased’s share of the family home (up to statutory limits, and with certain conditions) as well as a right to home contents and cash (again up to statutory limits). The surviving spouse or civil partner would also be entitled to ‘Legal Rights’ relative to a proportion of the moveable estate.

In contrast, where the deceased is not married or in a civil partnership, the rights of succession entitle children, parents or siblings of the deceased to inherit the entire estate instead. Despite living together in an enduring relationship for many years, the surviving partner has NO automatic right to inherit anything from the deceased whatsoever. In such circumstances it is left to the survivor to make an application to the Sheriff Court, and any order will be at the discretion of the Sheriff. This is particularly concerning if the couple have a mortgage together as the survivor remains jointly and severally liable to the bank, despite potentially inheriting nothing from the estate. This means the surviving partner would be entirely liable for the mortgage whilst only owning half of the property.

To avoid this outcome, couples who live together should put a Will in place to make sure their assets pass to their chosen beneficiaries. Complicated family circumstances need not present an obstacle; for example, specialist Wills adapted to blended families might be desirable where couples have children from previous relationships.

If you would like some more information or advice on this topic, please contact Jane by email to j.collins-whyte@delaneygraham.co.uk or by telephone 0141 483 4457.

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