Cohabiting couples ‘should have automatic right to inherit’

A leading lawyers’ association says that cohabiting couples should have automatic rights to inherit if their partner dies without making a will.

Under current law, a surviving partner must apply to the court to obtain financial provision or a share of the estate if their partner died intestate, that is, without having made a will. Married couples have an automatic right to inherit, although not necessarily all the estate in the case of intestacy.

The Faculty of Advocates in Scotland says cohabitation is widespread throughout the UK and so couples should be given more rights and greater protection. At the very minimum, they should automatically be allowed to continue living in the family home.  

It said: “Succession law is meant to be clear, straightforward and efficient. Requiring applications to the courts as a matter of course for cohabitants is undesirable.” However, the Faculty stopped short of saying cohabitants should have the same rights as married couples.

“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.”

So far, the government has been reluctant to give cohabiting couples more rights for fear of undermining marriage. It means that the only way cohabitants can control who inherits their money and assets is to make a will and keep it up to date. Failure to do so could mean that your partner loses out and your estate goes to family members you would not have chosen yourself.

Please contact Lisa McBrearty or Natalie Nero if you would like more information about making a will.