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Lawyers call for change to unmarried couples' inheritance laws
By Kirsteen Paterson @kapaterson Journalist
The Faculty of Advocates have said rules around wills should change
RULES on unmarried couples must change to stop one partner being made homeless when the other dies without a will, the Faculty of Advocates says.
The organisation, which represents lawyers, has told the Scottish Government that current laws are not "consistent with a modern, efficient and fair law of inheritance".
Cohabiting couples – who are not married or in a civil partnership – made up as many as 237,000 of households at the time of the 2011 census.
The Scottish Government is currently consulting on potential changes to the Law of Succession and is taking submissions on whether or not rules for that group should be revised.
Under existing regulations, the surviving half of a couple that lives together must apply to the courts to gain a share of assets when the other person dies without a will.
While "prior rights" over property are extended to the surviving member of married and civil partnered pairs in most "intestacy" cases, allowing them to remain in the shared home, that rule does not extend to those in relationships which have not been legally formalised.
The faculty says that system causes expense, uncertainty and delay, potentially leading to homelessness and creating tension within families, making them "competitors" for the assets left behind.
In some cases, surviving partners can be evicted from their family home by their loved one's children, siblings, parents or other heirs.
The faculty says this should be changed to give cohabitants an automatic entitlement to inherit – but that this provision "should not be equated to marriage or a civil partnership".
Instead, it proposes a "liferent", where the surviving partner can live in the property for life, but does not have the right to sell it.
Under the suggestion, individuals would have had to reside in the shared address for at least one year – and their deceased partner must not have been in an undissolved marriage or civil partnership at the time of death.
This, it argues, would help reflect what most people would want for their partners.
On the current framework, the faculty told the Scottish Government: "None of this is consistent with a modern efficient and fair law of inheritance in circumstances often of great stress to the survivors of the deceased.
"Succession law is meant to be clear, straight-forward and efficient.
"Requiring applications to the courts as a matter of course for cohabitants is undesirable for all of these reasons."
It continued: "Cohabitation should not be equated to marriage or a civil partnership.
"We do not agree with the proposals that after a certain period of time a cohabitant should have the inheritance rights of a spouse. That would not be in line with general expectations either of society or cohabiting couples. It would, in effect, create marriage for the purposes of succession or inheritance law.
"If the approach to intestate succession overall is to try and reflect what the deceased could or would have anticipated happening with their estate, it can probably be said, safely, that there would be a general expectation that the survivor in a stable cohabiting relationship should be able to continue to live in the home shared with the deceased after his/her death and not suffer possible eviction at the instance of the deceased's children, siblings or parents (or other heirs) with the consequences that may bring."
Meanwhile, it says step-children should not be given the same inheritance rights as biological or adopted children in intestacy cases.
And convicted murderers should be disqualified from being executor to their victim's estate.
The faculty said it is "difficult to think of any circumstances" in which such a ban would not be appropriate.
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