Claims by cohabitants on intestacy in Scotland (Private Client)
Produced in partnership with Yvonne Evans, Law Lecturer, Solicitor (non-practising), TEP, University of Dundee
Claims by cohabitants on intestacy in Scotland (Private Client)

The following Private Client guidance note Produced in partnership with Yvonne Evans, Law Lecturer, Solicitor (non-practising), TEP, University of Dundee provides comprehensive and up to date legal information covering:

  • Claims by cohabitants on intestacy in Scotland (Private Client)
  • Succession legislation: general
  • Definition of cohabitation
  • Applications under s 29
  • Orders under s 29
  • Criticism and proposals for change

This Practice Note discusses the provisions under section 29 of the Family Law (Scotland) Act 2006 (FL(S)A 2006) relating to the right of a surviving cohabitant to apply to the court for an order for payment from an intestate estate in Scotland. The court has discretion as to whether or not to grant an award where an application is made.

The provisions apply to same or mixed sex couples, but only apply on intestacy or partial intestacy. A surviving cohabitant has no claim where the deceased left a valid Will, regardless of the terms of that Will.

Succession legislation: general

The Succession (Scotland) Act 1964 (S(S)A 1964) provides the scheme of division of an intestate estate in Scotland. It lays out a hierarchy of division, and gives spouses/civil partners and children rights to inherit particular assets.

See Practice Note: Application for confirmation in Scotland—intestate cases.

FL(S)A 2006 does not amend S(S)A 1964. Rather, it creates parallel provisions. The court has discretion as to whether to make an award to a cohabitant, and the nature of such award. When FL(S)A 2006, s 29 is applied, an order may have the effect of reducing or excluding claims under S(S)A 1964 and, particularly, may reduce the amount available to children of the deceased.

FL(S)A 2006 came into force on 4 May 2006. The legislation created new rights in Scots

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