Wright Johnston and Mackenzie Solicitors

Claims for Cohabitants after a Death

Clients are often surprised that cohabitants don’t have an automatic entitlement when a partner dies, even after years of being together. Instead, a claim must be made and is only available if no Will was prepared.

Not only can this come as a shock to many, but the timescales and procedure make it incredibly difficult.

Firstly, there is a very strict time limit of 6 months (due to be extended to 12 months in 2024) from the date of death to raise an action. If this is missed, parties have no recourse to force executors to consider their needs.

This can cause severe financial hardship for cohabitant partners who have not provisions to cover things like mortgages or other debts.

Aside from the strict deadline, the process means that the cohabitant has to raise an action and prove to a Court that their relationship is deserving of a share of the estate. This can be made harder if the beneficiary of the estate is also their child, as it effectively means a parent can be suing their own child to receive assets from an estate.

Cohabs are generally encouraged to prepare a Will to avoid these scenarios from arising and our Private Client team can assist with such planning.

Where the time has passed for planning, and a claim needs to be made, we can assist you in raising the action to ensure the time limits are met. Often these actions are raised to protect your position, but then a settlement is worked out with the other beneficiaries to avoid going to Court and putting a family through this. Given that such agreements have broader implications for the estate’s tax position, what provisions are made for children, and dealing with property, a holistic approach is needed to consider all matters as one, rather than dealing with your claim in isolation and our expert team are well placed to provide such comprehensive advice.

Some of the key areas where our team can assist you, include:

  • Raising an action in the time limit to protect your position
  • Negotiating with the executors or other beneficiaries to reach a settlement
  • Seeking the appointment of a judicial factor (independent party appointed by a court) to represent a minor child if they are the ultimate beneficiary to assist in agreeing outcomes for the child
  • Advising on trust and other options to protect your position and balance the needs of any children, particularly in second family scenarios
  • Provide tax advice on the impact of any settlement