At the moment, the surviving partner of couples who live together, rather than marry or enter a civil partnership, has to apply to a court to obtain any financial provision in intestacy.

The Faculty believes that changes should be made so that cohabitants have an automatic entitlement to inherit in intestacy, allowing them at least to continue living in the family home.

The Scottish government has concentrated on intestacy in a consultation on the law of succession, and asked whether cohabitants should continue to have to apply to the courts.

The Faculty answered No, and said the current system could create ill-feeling between heir and cohabitant, and involve expense, uncertainty and delay.  

“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, straightforward and efficient. Requiring applications to the courts as a matter of course for cohabitants is undesirable for all of these reasons,” stated the Faculty’s response.

It said cohabitation was now a common feature in our society, and there should be an automatic entitlement to inherit, but not to the same extent as a spouse.

“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.

“We take the view that there should be some automatic entitlement to inherit…our favoured option would be for a cohabitant to inherit a liferent over the deceased’s title in the principal home of the cohabitants.”

A liferent would allow the cohabitant to have the benefit of the property for life, without the right to dispose of the property.

The Faculty suggested a one-year minimum qualifying period for cohabitation, and said a cohabitant’s entitlement to inherit should be on condition that the deceased was not married or in a civil partnership at the time of death.

For intestacy more generally, the Faculty favoured the suggestion of adopting principles similar to those of Washington State, where the division of property when a spouse dies allows for distribution of the wealth generated within a marriage/civil partnership.

Elsewhere in the response, the Faculty said a convicted murderer should be disqualified from being executor to their victim’s estate, and that step-children should not have the same rights as biological or adopted children to inherit in intestacy.