Scotland: Six Months to Claim, and No Guarantee

If your partner has died in Scotland and you were not married, you do not automatically inherit anything from them. That is the hard fact behind the search, and it is different from what most couples quietly assume about a long relationship. What Scotland gives a surviving cohabitant is a claim — a right to ask a court for a payment — not a share that falls to you by law. The claim exists under section 29 of the Family Law (Scotland) Act 2006, and it arrives with a deadline far shorter than the grief it lands in.

Two conditions decide whether you have anything to claim at all. Your partner must have died without a will, and you must apply to the court within six months of the death. Miss either and the section 29 route closes completely. Even when both are met, nothing is fixed: a sheriff decides what, if anything, you receive, and cannot award you more than a surviving spouse or civil partner would have taken from the same estate.

So "cohabitant rights when partner dies Scotland" is a slightly misleading phrase. It is better read as a cohabitant's right to ask, decided case by case, against a clock. This page sets out how the claim works, what a court weighs, why the six-month window is so unforgiving, and what puts a survivor in a far stronger position than any court application ever can.

The short answer: a claim, not a right

Scots law does not treat a cohabiting partner as a spouse when it comes to inheritance. There is no automatic entitlement, no fixed share, and no assumption that a couple who lived together for decades intended everything to pass to the survivor. If your partner left a will that provides for you, that will is what governs, and section 29 does not come into it. If your partner left no will, you are not in the queue of people who inherit under the intestacy rules — that queue is spouses, civil partners, children and other blood relatives, and a cohabitant is none of those.

What the Family Law (Scotland) Act 2006 did was create a separate, discretionary route. Rather than making a cohabitant an heir, it lets a survivor apply to a court for a discretionary payment out of the estate. It is best thought of as a safety valve for the person the intestacy rules would otherwise ignore, not as a share you can count on. The court can say yes, no, or yes to a smaller figure than you hoped, and its decision turns on the specific facts of your relationship and your partner's estate.

This is why the practical advice for unmarried couples is always the same, and always given while both are alive: do not rely on section 29. It is the thing that exists for the couples who did nothing, and it is a poor substitute for the certainty a will and the right cover provide. The same problem, in a different legal costume, catches unmarried couples across the whole UK — we set out the England and Wales version, the two-year court claim a cohabitant must bring, in our guide to the court claim a cohabitant must make to keep the house.

What section 29 of the Family Law (Scotland) Act 2006 gives you

Section 29 applies where a person who was cohabiting dies domiciled in Scotland and dies intestate — that is, without leaving a will. The surviving cohabitant can apply to the court for one of two things, or both: a capital sum out of the net intestate estate, or the transfer of specific property from it. The court has wide discretion over what to order.

Before it decides, the court looks at a defined set of factors. It considers the size and nature of the deceased's net intestate estate — what is actually there to share once debts and any prior claims are met. It considers any benefit the survivor has already received, or will receive, as a result of the death, from any source, including a life policy or a jointly owned asset that passed automatically. It considers the nature and extent of any other rights against or claims on the estate, which in a family with children matters a great deal. And it considers any other factor the court thinks relevant. It is a balancing exercise, not a formula.

The court also has to be satisfied you were a cohabitant in the first place, and that is not automatic either. A sheriff will look at how long you lived together, the nature of the relationship, and the degree to which you were financially interdependent — shared accounts, shared bills, a shared home. A short or loosely arranged relationship is harder to bring within the section than a settled, financially entwined one. You will need evidence, and you will need it quickly, which is the next problem.

The six-month deadline, and why it is unforgiving

The application must be made within six months beginning with the day your partner died. This is the single most dangerous feature of the whole regime, because six months is nothing when you are burying someone, registering the death, dealing with a frozen sole account and working out who the estate even involves. The clock does not pause for any of that.

Worse, the court has no general discretion to let a late claim in. Unlike some time limits elsewhere in the law, this one is not one a sheriff can simply extend because your reason for delay was a good one. If you find out about section 29 in month seven — and many people do, because nobody tells them — the door has usually already shut. That is a real difference from the equivalent claim in England and Wales, where the six-month period runs from the grant rather than the death and the court keeps a power to allow late applications.

The practical consequence is blunt. If your partner has died in Scotland, you were living together, and there is no will, you should take legal advice within weeks, not months. A solicitor who does executry and family work can tell you quickly whether you have a claim worth raising and get the application in before the deadline. Free starting points include Citizens Advice Scotland and the Scottish Government's guidance at mygov.scot on dealing with a deceased person's estate, but neither replaces getting your own solicitor onto it fast.

What a sheriff can award, and what caps it

If the court is satisfied you qualify and the application is in time, it can order a capital payment, the transfer of property such as a share of the house or its contents, or a combination. There is no published tariff. Two cases with similar-sounding facts can produce very different outcomes, because the estate, the other claims and the survivor's own resources differ each time.

There is, however, a firm ceiling. The award cannot put you in a better position than a surviving spouse or civil partner would have been in under the intestacy rules. In other words, marriage remains the benchmark, and cohabitation can at best reach up towards it, never past it. Where a spouse's prior rights and legal rights would have absorbed most of a modest estate, a cohabitant might in principle receive a comparable amount; but the discretionary nature of the claim means you cannot bank on it, and legal costs come out of whatever you recover.

It is also worth being clear about what the claim is against. It reaches the net intestate estate — assets in your partner's sole name that fall to be distributed. It does not reach assets that never entered the estate. A house you owned jointly with a survivorship destination, a policy written in trust for you, a pension paid at the scheme's discretion to a nominated partner: these can pass to you outside the estate entirely, and they are exactly the arrangements that make a section 29 claim unnecessary. If you are reading this before anything has happened, that is the lesson to take from it — you can get life insurance quotes and have an FCA-authorised broker set cover up in trust so it reaches you directly, without a court, a grant, or a deadline.

If there is a will, section 29 does not apply at all

This surprises people, and it cuts both ways. Section 29 is a remedy for intestacy only. If your partner left a will — even a will that leaves you nothing — the section 29 claim is simply not available to you. You cannot use it to challenge an unfair will, and Scotland does not have the broad family-provision jurisdiction that England and Wales use for that purpose.

So a cohabitant faced with a will that cuts them out is in a genuinely weak position. You are not a spouse, so you take no legal rights in the estate. You are not a child, so legitim does not help you. Your arguments become narrow and technical — whether the will is valid, whether promises were made and relied upon, whether property is really held as the title suggests — and none of them is a reliable route to a home you assumed was partly yours.

The reassuring reading of this is the important one. A will made deliberately in your favour is worth far more to a cohabiting partner than the section 29 claim ever could be, because it removes the discretion, the deadline and the cap in one step. Pairing that will with cover written in trust, and checking how the home's title is held, is the combination that actually protects an unmarried survivor. For couples in a second relationship with children on one or both sides, the interaction of a will with the children's own claims needs care, which we cover in how legal rights let your children claim against your estate in Scotland.

How the money side falls on a surviving cohabitant

The legal argument runs in parallel with a practical one that starts on day one. While you are deciding whether to raise a section 29 claim, the bills do not wait. Your partner's sole bank account is frozen the moment the bank is told of the death, so any direct debits paid from it can fail. If the mortgage, rent or household costs were carried mainly by the partner who died, the survivor is funding them out of their own pocket for the months it takes to sort the estate — and doing so with no guarantee the claim will ever repay it.

This is where the value of cover shows itself, because a policy written in trust is not part of the estate and does not wait for a grant of confirmation. The trustees can be paid within weeks and hand the money to you, which is the difference between keeping the home running and falling into arrears while a claim grinds on. If you were the lower earner, or the one now solely responsible for children, that speed matters more than the eventual court outcome. We look at the wider single-income squeeze in what happens on one income with two children and nobody behind you, and at the housing-specific version for part-owners in whether an unmarried partner can stay in a shared ownership home.

There is also a benefits point that childless cohabiting couples in particular should know. Bereavement Support Payment reaches unmarried partners only in narrow circumstances, and the state provides very little to a surviving cohabitant otherwise. Practical, income-focused help is worth lining up early; the work-search rules, for instance, ease off for a period after a partner dies, which we explain in the six months with no job-search requirement after a partner dies.

Death before old age is uncommon in any single year, but across the length of a relationship it is far from rare, which is precisely why couples who assume they have decades to formalise things are the ones caught out. National Records of Scotland publishes the registered deaths that show how often it happens across every age group.

Source: National Records of Scotland, Vital Events Reference Tables, deaths (Chapters 5–6), published under the Open Government Licence v3.0.

What actually protects an unmarried partner in Scotland

Section 29 is the net beneath the tightrope. It is far better not to need it. Four things, arranged while both partners are alive, take a survivor out of the discretionary lottery altogether.

• A will. The single most effective step. It removes the intestacy problem, defeats the six-month deadline and lets you say exactly who gets what, rather than leaving it to a sheriff's discretion.
• Life cover written in trust. It pays the survivor directly, outside the estate, without a grant of confirmation and without waiting. For an unmarried couple this is often the fastest money available after a death.
• The right home ownership. How the title is held decides whether your share passes automatically to your partner or falls into your estate. A solicitor can check whether a survivorship destination is in place and whether it still reflects what you both want.
• Up-to-date nominations. Pensions and death-in-service benefits often follow a nomination form rather than the will. An unmarried partner who is not named may be overlooked, so the forms need checking now.

None of this requires marriage, and none of it is expensive to arrange relative to what it protects. It simply moves you from hoping a court will help to knowing what a survivor will have. If you want to understand the wider set of gaps that catch dependants and non-standard households, our guide to dependants and unusual family shapes pulls the related questions together in one place.

Frequently asked questions

What can a surviving cohabitant claim in Scotland?

Section 29 of the Family Law (Scotland) Act 2006 lets a surviving cohabitant apply to the court for a payment from the estate. It applies only where the deceased died without a will. The court decides what, if anything, to award, and the amount cannot exceed what a surviving spouse or civil partner would have received from the same estate.

How long do I have to make the claim?

The application must be made within six months of the death, which is a very short window while you are grieving and still gathering paperwork. The court has no general power to extend it, so a claim brought even slightly late is usually barred. Take legal advice quickly if you were living with your partner and there was no will.

Does the claim still work if there is a will?

No. The section 29 claim exists only where the deceased died intestate. If a will leaves you nothing, you are not a spouse and you have no legal rights in the estate, so you would be relying on other and far weaker arguments. A will made in your favour and cover written in trust between you avoid that position entirely.