Further proposals by the Scottish Law Commission (SLC) as part of a two-stage consultation on reform of Succession Law could affect a significant number of unmarried couples living together.
The proposed new rules relate to the division of an estate where an individual dies intestate, the rights of children, spouses and civil partners not to be disinherited from an estate, and new rights for unmarried (cohabiting) partners.
Currently, the Family Law (Scotland) Act 2006 gives cohabitants limited rights on separation and death. If there is no Will, the surviving cohabitant can seek a share of their late partner’s estate by applying for financial provision to the Scottish courts within six months of their death.
The SLC has recommended this period is extended to one year, and that cohabitants can also claim financial provision even if their late partner left a Will that didn’t include them. These changes could delay the administration of the estate and increase costs if a court action is raised.
A further change proposed by the SLC is around disinheritance. In Scotland, “legal rights” prevent a testator from disinheriting a spouse, civil partner or children. Currently, legal rights can only be claimed from the deceased’s moveable estate. However, the SLC proposes to replace legal rights with “legal share”, which would apply to all property including land and buildings. This has caused controversy as, if implemented, it could force the sale of assets to satisfy a legal shares claim.
Tom Curran, Chief Executive at Kings Court Trust said: “These proposed changes should prompt cohabitants without a Will to consider having one drawn up to ensure their wishes are carried out following their death.
By ensuring that your Will is clearly and professionally written, your estate can be dealt with as smoothly as possible and reduces the likelihood of loved ones being unintentionally excluded when it comes to their inheritance. It is important that people understand the benefits of planning ahead, regardless of our age or health.”
Although the second consultation is ongoing and Succession Law does not feature on the Scottish Government’s legislative programme for 2016–17, it is anticipated that further changes will be implemented in the future.