Inheritance Rights of Cohabitees

Author: Heather Warnock
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Cohabitation is far more common these days than ever before. To move in with a partner is a big decision and understandably the practicalities of what would happen to the cohabitants’ home if one of them were to die without leaving a will is not top of the list of immediate considerations. However, unlike spouses or civil partners cohabitees do not have automatic rights to inherit.

In the event of death of one cohabitee what would happen to their home?  This would depend on what was in the title deeds.  Norman and Naomi live together and neither of them has a Will. There are three possible outcomes.

  1. Norman owns the property entirely and predeceases Naomi. This would mean that Naomi owns none of the property. This is not a good scenario for Naomi. Norman could make sure that this precarious position does not occur by leaving the property to Naomi in his Will.
  2. The title deeds may show the house to be in the joint names of the couple and “the survivor of them”. This is what is known as a survivorship clause which means that if one of them dies the survivor inherits the other’s share.
  3. The couple each own half of the property but there is no survivorship clause. If Norman dies then his share will go to his family. Naomi could make a cohabitee’s claim to buy Norman’s share or persuade his family to allow her to continue to live there. Not an ideal position to be in.

There are two ways to avoid that situation:

  • Make a Will protecting each person’s interest when the other dies.
  • It is possible to draw up a Cohabitation Agreement covering a number of different eventualities.

Although it is possible for the survivor to make a claim against the estate if there is no Will they must do so within six months. There are also limits to what courts can award.

Conversations regarding Wills and Cohabitation Agreements are always uncomfortable but the avoidance of such a conversation may prove to have an extremely difficult outcome and an expensive exercise in legal fees.

If I can help please contact me Heather Warnock, Associate  on 0141 552 3422 or by email heather@mitchells -roberton.co.uk

Heather Warnock

About Heather Warnock

Heather joined Mitchells Roberton in March 2013 as a Financial Guardian Administrator having graduated with a first class honours degree in law from Glasgow Caledonian University in 2011 and thereafter having completed her Diploma in Legal Practice at Strathclyde University in 2012. She was taken on as a trainee of the firm and started on 2nd June 2014. Heather has now completed her traineeship and is staying with us as a qualified assistant working in the Private Client Department. She will be assisting with succession and trust issues, the administration of estates and the preparation of Wills and Powers of Attorney. Heather is consistently client focused and is skilful in dealing with clients in circumstances which are frequently emotionally charged.Currently Heather is studying for the STEP Diploma in Trusts and Estates-Scotland and has passed her first exam Wills and Executries – Law and Practice with Distinction. Heather who is originally from Northern Ireland loves going home to visit her family whenever she can. She enjoys live comedy and the theatre. She is an excellent cook and expert baker….most welcome skills for our office. Email: hw@mitchells-roberton.co.uk

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