Cohabitants and Intestacy
10 October 2008
When a person dies without a will it is known in law as intestacy. The Family Law (Scotland) Act 2006, in particular the provision relating to the rights of surviving cohabitants on intestacy, has come under the spotlight recently.
Under the Family Law (Scotland) Act 2006 a surviving cohabitant can apply to the court for a financial award. However, an application must be made within six months of the deceased’s death. This is a tight deadline should any legal issues arise. The Scottish Law Commission has proposed for this to be extended to one year.
Other criticism has come from the fact that the law does not make it an enshrined right that a surviving cohabitant can apply to be appointed as executor of their deceased partner’s estate.
One interesting sheriff court case [Thompson, Petitioner, Glasgow Sheriff Court, 16 June 2008], recently commented on by James Inglis [2008 SLT 190], concerned the surviving partner of a long-term cohabiting relationship. She asked the court to be made the executor of her late partner’s estate.
Where there is no will you must go through the court process to appoint an executor. However, in the terms of the law, it is usually blood relations that apply to be appointed.
In the case in hand, the sheriff agreed to appoint the surviving cohabitant as the executor of the estate. This decision may have been made easier as the surviving blood relations of the deceased were cousins who had come to an agreement which altered their rights in favour of the surviving cohabitant.
It is always prudent for cohabitants to make a will. See our Wills sections for details.