There is no such thing as a “common law spouse” in Scotland!
“If you live with someone but are not married to them, and if you don’t have a Will in place at the time of your death, your surviving partner will have no automatic right to a share of your estate. Many people who are in cohabiting relationships are unaware of this. Since the passage of the Family Law (Scotland) Act 2006, it has been possible for a surviving cohabitant to apply to a court, asking for an award out of the estate, where their partner has died without a Will. The application must be made within six months of death. In deciding whether to make an award (and if so how much) the judge must have regard to various factors including: the size and nature of the estate; the existence of any other claims which might exist on that estate on the part of other surviving relatives; and any other benefits (such as a life insurance payment) that the surviving partner might have received. The 2006 Act can provide a useful safety valve in such cases, but it provides no guarantees and is not a substitute for a Will.”
This example highlights the reality of likely implications in day to day lives:
At the time of Andrew’s tragic death, Andrew and Pauline had been together for 12 years. He was 44 and she was 42. They were, according to their friends, one of the happiest and most committed couples you could imagine, but they had never married.
They had lived together in a flat which they had bought jointly 10 years ago. They had both contributed to it over the years. Pauline’s mother had gifted them £50,000 when they bought the flat which they had used to renovate it. They had used Pauline’s salary for everyday living costs, and had managed to put aside £30,000 in savings from Andrew’s salary. Those savings were in Andrew’s name, simply because it had been easier for him to open up an online savings account with his bank that way. Neither of them had ever got round to making a Will.
You can imagine Pauline’s abject horror when she discovered that Andrew’s savings and his share of the flat would not simply pass to her on his death. Pauline had been sure that she was Andrew’s “common law wife” since she had lived with him for so long. Her lawyer explained to her that Andrew’s estate would pass automatically to his brother, Steve, his only living relative. Steve would inherit Andrew’s share of the flat and all of his savings. Pauline was aghast: she had never got on with Steve and she was not expecting any favours from him! Andrew hadn’t got on with his brother either, to the extent that he and Steve had not been on speaking terms for the past few years. Steve made it abundantly clear to Pauline that she would either have to find the money to buy him out of the flat or he would insist on it being sold.
There was, the lawyer explained, a possible remedy for Pauline. She could make an application to court arguing that as Andrew’s surviving cohabiting partner, she should be awarded a sum of money from his estate. She could also ask the court to make an order transferring Andrew’s share of the flat to her instead of Steve. Whilst the lawyer was hopeful that Pauline would get something, he refused to be drawn on how much, saying that, at the end of the day, it was at the judge’s discretion. There were no guarantees. There was going to be a huge rush to get the case into court: the case had to be raised within six months of Andrew’s death and Pauline had been so grief-stricken that she hadn’t got round to consulting a lawyer for five and a half months. Steve would probably instruct his own lawyer and oppose Pauline’s request…
Eight months and several thousands of pounds later, Pauline was successful (in the teeth of Steve’s opposition) in having Andrew’s share of the flat transferred to her. The sheriff decided to allow Steve to keep his brother’s savings. Pauline felt doubly scarred: she had lost her life partner and she had had to go through a court battle to stay in her own home.