What should I do if my partner dies without a will?

What should I do if my partner dies without a will?

It’s a common misconception that unmarried partners have the same legal rights as those who are married or in a civil partnership. In Scotland, if your partner dies without a will, they are said to have died “intestate” and their assets and property will be distributed according to the laws of intestacy.

This means that if your partner has surviving children, parents, siblings, aunts, uncles or grandparents, those who are the closest in the line of succession will inherit and you may not receive any part of the estate. If you are not married, you do not have an automatic right to inherit your partner’s intestate estate, even if you lived together for a long time and were in a committed relationship.

Making a claim

Even if your partner dies without a will, there are still steps you can take. Under section 29 of the Family Law (Scotland) Act 2006, if you lived with the deceased as a cohabitant in a marriage-like relationship immediately before their death, you can bring a claim for a capital sum payment from the deceased’s net intestate estate or an order for transfer of property, either heritable or moveable.

To make a claim, you need to apply to the court within six months of your partner’s death. The court will consider various factors, such as the length and nature of your relationship, any financial contributions you made to the household, and your financial needs. They will consider the size and nature of the deceased’s net intestate estate, any other benefit received or to be received by the survivor on the deceased’s death or from another source, the nature and extent of any other rights, or claims on, the deceased’s net intestate estate and any other matter the court considers appropriate.

If you are successful, then you will be awarded a capital sum or transfer order, however the court cannot award an amount which would exceed the amount to which the survivor would have been entitled if they were the spouse or civil partner of the deceased.

It’s important to note that making a claim against your partner’s estate can be complex and costly, and there is no guarantee that you will be successful. It’s always advisable to seek legal advice if you are considering making a claim.

Making a will

If you are in a committed relationship, but are not married or in a civil partnership, then it is extremely important that you and your partner make a will. Making a will ensures that you are provided for if your partner dies and vice versa. It also takes the guesswork out of inheritance and means your assets are distributed according to your wishes, and reduces the risk of any claims being made against your estate.

McSherry Halliday’s wills and powers of attorney experts will listen to what’s important to you and offer practical, professional advice to help protect you and your partner’s future.