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Faculty backs cohabitants' automatic rights in intestate estates

16 May 2019

Cohabitants should have an automatic right to inherit from a deceased partner who leaves no will, the Faculty of Advocates has suggested.

In its response to a Scottish Government consultation on the law of succession, Faculty believes that a cohabitant should be allowed at least to continue living in the family home.

At the moment, the surviving partner of couples who live together, rather than marry or enter a civil partnership, has to apply to a court to obtain any financial provision in intestacy. Answering a question whether this system should continue, Faculty answers No, suggesting it can create ill-feeling between heir and cohabitant, and involve expense, uncertainty and delay.

"None of this is consistent with a modern, efficient and fair law of inheritance in circumstances often of great stress to the survivors of the deceased", Faculty states. "Succession law is meant to be clear, straightforward and efficient. Requiring applications to the courts as a matter of course for cohabitants is undesirable for all of these reason."

Whereas the Law Society of Scotland, in its response published yesterday (click here for report), said the question was a matter for policymakers, Faculty argues that cohabitation is now a common feature in our society, and there should be an automatic entitlement to inherit, but not to the same extent as a spouse.

It comments: "Cohabitation should not be equated to marriage or a civil partnership. We do not agree with the proposals that after a certain period of time a cohabitant should have the inheritance rights of a spouse. That would not be in line with general expectations either of society or cohabiting couples. It would, in effect, create marriage for the purposes of succession or inheritance law.

"If the approach to intestate succession overall is to try and reflect what the deceased could or would have anticipated happening with their estate, it can probably be said, safely, that there would be a general expectation that the survivor in a stable cohabiting relationship should be able to continue to live in the home shared with the deceased after his/her death and not suffer possible eviction at the instance of the deceased’s children, siblings or parents (or other heirs) with the consequences that may bring.

"We take the view that there should be some automatic entitlement to inherit… our favoured option would be for a cohabitant to inherit a liferent over the deceased’s title in the principal home of the cohabitants."

This would allow the cohabitant to have the benefit of the property for life, without the right to dispose of the property.

"In addition," the response continues, "the cohabitant should inherit any share of the deceased in the household goods where the couple had a presumed equal share under s 26 of the Family Law (Scotland) Act 2006. Consideration could also be given to a right to inherit a capital sum, either determined as a percentage share of what a spouse would have received or a fixed amount. Such additional rights could be conditional or not, as in other jurisdictions, or variable depending on whether there are surviving children of the couple. The most fair and effective solution needs careful consideration."

Faculty suggests a one-year minimum qualifying period for cohabitation, and that entitlement to inherit should be on condition that the deceased was not married or in a civil partnership at the time of death. A surviving spouse or civil partner should still have succession rights where there is a cohabitant, as to provide otherwise "would introduce undesirable complexity into the law".

As regards married couples, Faculty favours the suggestion of adopting principles similar to those of Washington State, where the division of property when a spouse dies allows for distribution of the wealth generated within a marriage/civil partnership.

Elsewhere in the response, Faculty believes that a convicted murderer should be disqualified from being executor to their victim’s estate, and that stepchildren should not have the same rights as biological or adopted children to inherit in intestacy, though should be able to inherit if the estate would otherwise pass to the Crown.

Click here to view the response. 

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