Scotland: A Cohabitant Has Six Months to Claim the Home

If your cohabiting partner died in Scotland and you were not married, whether you can stay in the house depends on two things you can check this week: whose name is on the title, and whether there is a will. Scotland does give a surviving cohabitant a claim the rest of the UK does not have in the same form. It also gives you very little time to make it, and it takes the claim away entirely if your partner left a will.

The claim sits in section 29 of the Family Law (Scotland) Act 2006. Where a cohabitant dies intestate — with no will — the survivor can apply to the court for a payment out of the estate, or for property to be transferred to them. It is a discretionary award, not a share you are entitled to. The court decides whether to make one and how large it should be.

The deadline is the part that ends most of these claims before they start. The application must be made within six months of the date of death, and it runs from the death itself, not from the appointment of an executor or the issue of confirmation. Six months of a bereavement disappear quickly. Speak to a Scottish solicitor in days, not months.

The short answer: a claim, and six months to make it

Scotland took a different route from England and Wales on cohabitation. Rather than adding cohabitants to an existing family provision statute, it created a standalone remedy in family law legislation, and attached to it a deadline drawn from family law rather than succession law. That is why the limit is so short.

The application goes to the sheriff court or the Court of Session. You are asking the court to order a capital sum out of the deceased's net intestate estate, or the transfer of property from it, or both. Heritable property — land and buildings, which is where a house sits — can be transferred, which is what makes this a claim about the roof over your head and not just about money.

Nothing about it is automatic. You have to establish that you were a cohabitant within the meaning of the Act: a member of a couple living together as if you were spouses or civil partners. The court looks at how long you lived together, the nature of the relationship, and the nature and extent of any financial arrangements between you. There is no fixed qualifying period written into the statute, which is a real advantage over the position further south, but a short relationship with separate finances will be a harder case than a long one with a shared household.

The deadline runs from the death

This is the single most important sentence on this page, so it gets its own section.

The application must be lodged with the court within six months beginning with the day the deceased died. Not six months from confirmation. Not six months from when you found out there was no will. Not six months from when the executor finally replied to your letter. From the death.

That limit has been widely criticised as unrealistic for someone who has just lost their partner, and the Scottish Parliament has passed legislation to extend it to twelve months. At the time of writing that provision had not been commenced, so the six-month rule remained the one in force. This is precisely the sort of detail that changes without announcement, and it is not something to take from a website — including this one. Ask a Scottish solicitor, in your first meeting, which limit applies to a death on your partner's date.

Behave as though it is six months regardless. There is no benefit in the extra time if you have used it up waiting, and the practical work — establishing what is in the estate, getting an executor appointed, taking advice, attempting a negotiated settlement — takes longer than people imagine. An executor-dative has to be appointed before an intestate estate can be dealt with at all, and that process is not instant.

There must be no will, and that is the biggest limit of all

Section 29 applies only where the deceased died intestate. If there is a valid will, the claim does not exist, no matter what the will says or how long you were together.

Read that again if you have just found a will that leaves everything to his children. In England and Wales, a cohabitant in that position could apply under the 1975 Act for reasonable financial provision against an estate governed by a will. In Scotland there is no equivalent. A will is close to final as against a surviving cohabitant, and that asymmetry surprises people who have read English guidance and assumed it travels.

It also produces an outcome that feels perverse. A partner who never got round to making a will leaves you with a claim. A partner who made one and simply never updated it after you moved in leaves you with none. That is the law as it stands, and it is the strongest possible argument for both of you writing wills rather than one of you doing it.

Nor does Scots law offer the same fallback that English law does. In England, a cohabitant who paid towards a house registered in their partner's sole name can often assert a beneficial interest through a constructive trust. Scots law does not have that doctrine in the same form. Arguments based on unjustified enrichment exist and are occasionally run, but they are difficult, expensive and much less predictable than their English counterparts. Do not assume that money you put into the house automatically buys you a share of it.

What the court can award, and the ceiling on it

If your claim gets through the door, the court has a genuine discretion. It can order a capital sum, payable immediately or by instalments, and it can order the transfer of property from the estate to you.

In deciding, it looks at the size and nature of the net intestate estate; any benefit you have received, or will receive, as a result of the death from somewhere other than the estate — a pension death benefit or a life policy, for instance; the nature and extent of any other rights or claims against the estate; and anything else it considers material.

There is a ceiling. The award cannot exceed the amount you would have received had you been the deceased's spouse or civil partner. Marriage remains the upper bound, and in practice awards frequently land well below it. Reported cases have produced everything from a substantial capital sum to nothing at all, and the outcome turns heavily on the size of the estate and who else has a claim on it.

Note the second factor carefully, because it cuts against you in a way people do not expect. If a pension scheme or an employer's death in service arrangement pays you a lump sum at the trustees' discretion — which cohabiting partners often do receive, since those payments sit outside the estate and outside the intestacy rules — the court can take that into account and award you less from the estate as a result. Money arriving from one direction can reduce what arrives from another.

What is actually in the net intestate estate

Your claim is against the net intestate estate, and Scots succession law takes several bites out of it before you get near it.

First come debts, funeral expenses and any inheritance tax. Then come prior rights, which belong to a surviving spouse or civil partner and can absorb a modest estate almost entirely: rights in the dwellinghouse the survivor was ordinarily resident in, in its furniture and plenishings, and to a cash sum, each subject to statutory limits. Then come legal rights, which belong to a surviving spouse or civil partner and to children, and which give them a set share of the moveable estate as of right.

The distinction between heritable and moveable property runs through all of this and matters enormously to you. Heritable property means land and buildings. Moveable property means everything else — bank accounts, investments, cars, possessions. Legal rights attach only to the moveable estate, which is why a Scottish estate whose main asset is a house behaves quite differently from an English one.

If your partner was still legally married to someone else when he died, that spouse's prior rights and legal rights come ahead of your claim. Separation is not divorce. This is one of the most common reasons a cohabitant's claim in Scotland turns out to be worth far less than the estate first appeared to hold.

The statutory limits attached to prior rights are set by order and have been revised over the years, so do not work from a figure you have seen quoted somewhere. Ask what the limits were at your partner's date of death.

If your name is on the title, this may not apply to you

Before spending money on a claim, get a copy of the title from Registers of Scotland and read what it actually says.

If you owned the house together, and the title contains a survivorship destination — wording along the lines of "to A and B and to the survivor of them" — the deceased's share passes to you automatically on death. It passes outside the will, outside the intestacy rules and outside confirmation. There is nothing to claim, because the house is already yours.

This is a genuinely Scottish feature and it is common in older titles, though far less so in recent conveyancing. It is also the reason some surviving partners in Scotland are in a much stronger position than an equivalent couple in England, and others in a much weaker one, on the strength of a single clause drafted years ago.

The mirror image is worth checking too. If a survivorship destination gives you the house, and you were both borrowers on the standard security, you now own the whole property and owe the whole mortgage. Joint borrowers in Scotland are liable for the full balance, the same as anywhere else in the UK, and the loan does not shrink because one of the two people paying it has died.

The mortgage and the money while you wait

Court timetables and lender timetables have nothing to do with each other, and this is where people get hurt.

If the loan was in his sole name, you are not a borrower. The lender cannot pursue you, but nor does it owe you anything: it does not have to accept your payments, keep you informed, or leave you in the house. Write to the lender's bereavement team, tell them who you are and that you are living in the property, and ask in writing whether payments from you will be accepted while the estate is sorted out. Keep a record of everything you pay. Those records are evidence, and may be recoverable from the estate.

Check what kind of loan it is before assuming anything. A lifetime mortgage taken out in later life is repayable when the last borrower dies or moves permanently into care, and the estate is normally given around a year to do it — the position we set out in equity release on death and what is left for the family. If the estate does repay early, ask whether a charge applies, because lenders vary and the waiver is often a policy rather than a right; see early repayment charges when the borrower dies.

If you were renting rather than buying, the question is a succession-of-tenancy question rather than a succession-of-estate one, and the rules depend on the tenancy type. Start with why an unmarried partner has fewer rights when renting.

On income: if you are claiming Universal Credit, ask about the bereavement easement, which suspends work search requirements for a period after a partner dies. It is not automatic and you have to raise it. We explain how it works in six months with no job search after a partner dies. mygov.scot covers the Scottish process after a death, and Citizens Advice can help with benefits and debt for free.

How Scottish couples avoid all of this

Everything above is the uncertain, expensive version of a problem with a cheap and certain solution.

Make wills. In Scotland, a will does not merely improve a cohabitant's position — it is very close to the only thing that secures it, because a will removes the need for a section 29 claim and, conversely, a will made in someone else's favour destroys the claim entirely. If you take one action after reading this, make it that.

Get the title right. If you are both contributing, be on it, and take advice on whether a survivorship destination suits your circumstances. It is powerful and it is difficult to change unilaterally afterwards, which is the point of it and also the risk.

Then deal with the debt, because a court order does not pay a lender. Cover written against the mortgage produces money at the moment it is needed, and it pays regardless of whether there is a will, a claim or a dispute among relatives. Match the shape of the policy to the shape of the loan: level cover for a balance that never falls, as in decreasing cover against an interest-only loan. If the household income came out of a company, understand how fast it stops — see the dividends stop the day the director dies — and if you are relying on an employer's scheme, do the subtraction properly first, as in four times salary against a real mortgage balance.

Whether an insurer offers cover, and on what terms, always depends on health, occupation and underwriting; nobody can promise acceptance before an application has been assessed. If you want to know what it would take in your case, you can get life insurance quotes and have an FCA-authorised broker price it against the actual balance and term. The wider Scottish succession picture is in Scotland: six months to claim, and no guarantee, and the rest of this topic sits in our guide to mortgages and property when someone dies.

Frequently asked questions

What can a cohabitant claim in Scotland when their partner dies?

Where the partner died without a will, a surviving cohabitant can apply to the court for a discretionary payment from the estate under section 29 of the Family Law (Scotland) Act 2006, or for property to be transferred. The court decides the amount and can award nothing; there is no automatic entitlement, and no award can exceed what a spouse or civil partner would have received.

How long do I have to make the claim?

Six months from the date of death, which is one of the tightest limits in UK succession law and is strictly applied. Legislation to extend it to twelve months has been passed but was not in force at the time of writing, so anyone in this position should see a Scottish solicitor within days rather than weeks and confirm which limit applies.

Does the claim apply if there was a will?

No. The section 29 route exists only where the partner died intestate. If there is a will that leaves the cohabitant nothing, there is no equivalent statutory claim in Scotland, and the constructive trust arguments available in England are not available in the same form. That makes making a will the only reliable protection for an unmarried couple.