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Cohabiting Couples and Wills in Scotland

If you live with your partner but are not married or in a civil partnership, Scots law does not give you automatic inheritance rights. That is the single most important thing unmarried couples in Scotland need to understand. This plain-English guide explains what happens if one of you dies without a will, what rights you do and do not have, and how to protect each other properly.

If you already know you need a will and want to get started, you can make your Scottish will online here for a fixed fee. Otherwise, read on.

Contents

1. Cohabiting Couples Have No Automatic Inheritance Rights

In Scotland, married couples and civil partners have strong legal protections when one partner dies. They have prior rights and legal rights under the Succession (Scotland) Act 1964, which guarantee them a share of the estate.

Cohabiting couples have none of this.

It does not matter how long you have lived together, whether you have children together, or whether you own property jointly. If your partner dies without a will, you have no automatic legal right to inherit anything from their estate under Scots law.

This catches many couples off guard. There is a common belief that living together for a certain number of years creates a “common-law marriage” with the same rights as a married couple. In Scotland, that is not the case. Common-law marriage was abolished in Scotland in 2006. No amount of time living together creates automatic inheritance rights.

2. The Family Law (Scotland) Act 2006 – Limited Protection

The Family Law (Scotland) Act 2006 did introduce some rights for cohabiting couples, but they are limited and far from guaranteed.

Under this Act, if your partner dies without a will, you can apply to the court for a share of their estate. However, there are important restrictions:

  • It is not automatic – you have to make a court application, which takes time and costs money
  • There is a strict time limit – you must apply within six months of your partner’s death
  • The court decides – there is no guaranteed amount. The court considers the length of your relationship, any financial contributions, and any children
  • The award is capped – you cannot receive more than a married spouse would have received through prior rights and legal rights

In practice, this means a surviving cohabitant might receive something, but it is uncertain, stressful, and expensive to pursue – especially at a time when you are grieving.

A will removes all of this uncertainty.

3. What Happens if Your Partner Dies Without a Will

If an unmarried partner dies without a will in Scotland, the intestacy rules decide who inherits. These rules are set out in the Succession (Scotland) Act 1964, and they follow a strict order based on family relationships.

For most estates, the order is:

  • Children of the deceased
  • Parents and siblings
  • Other blood relatives

Notice who is not on that list: your cohabiting partner.

That means if you die without a will, your partner could be left with nothing – or at best, whatever a court decides to award under the 2006 Act. Your share of a jointly owned home could pass to your children, your parents, or even distant relatives.

If you have children together but are not married, your children will inherit – but your partner may lose the family home or be forced to sell it. For a full explanation of how intestacy works in Scotland, read our guide to intestacy in Scotland.

4. Why a Will Matters Even More for Unmarried Couples

Many people assume that a will is something married couples need. In reality, it is the opposite. Married couples already have legal protections. Unmarried couples have almost none.

A will is the only way to make sure your partner is looked after if something happens to you. Without one, you are leaving their future to the intestacy rules and the courts.

Consider these common situations:

  • You own a home together – without a will, your share could pass to your parents or children, not your partner
  • You have children together – your partner may need to sell the family home to pay out other beneficiaries
  • You have children from a previous relationship – without clear instructions, disputes between your partner and your children become more likely
  • You have savings, investments, or a business – none of this automatically passes to a cohabiting partner

A properly drafted will gives you control over who inherits your estate and ensures your partner is protected.

5. What to Include in Your Will as a Cohabiting Couple

When writing a will as an unmarried couple, there are several things worth covering:

  • Your share of the family home: If you own property together, your will can specify that your share passes to your partner. This is particularly important if the property is held as tenants in common (meaning your share does not automatically transfer on death)
  • Guardianship for children: If you have children under 16, your will can name a guardian – the person who takes on parental rights and responsibilities if both parents die. Read our guide to guardians in Scottish wills for more on this
  • Specific gifts: Any personal items, savings, or assets you want your partner to receive
  • Residuary estate: The “rest” of everything after specific gifts. Many cohabiting couples leave the residuary estate to their partner, with children as substitute beneficiaries
  • Executors: The person who administers your estate. Your partner can be named as an executor. See our guide to executors in Scottish wills
  • Pension and life insurance nominations: These are handled separately from your will, but it is worth reviewing your nomination forms at the same time to make sure everything aligns

6. Mirror Wills for Unmarried Couples

Many cohabiting couples choose to make mirror wills – two separate wills that reflect each other. Typically, each partner leaves their estate to the other, with the same backup beneficiaries (usually children) if the other partner has already died.

Mirror wills are not legally linked. Each person can change their will independently at any time. But they provide a clear, coordinated plan that covers both of you.

At ScottishWill, mirror wills for couples cost a fixed fee of £149 for both wills together. Each will is individually drafted, checked, and delivered as a complete Will Pack. The process usually takes around ten minutes to complete online, and your Will Packs are emailed within two business days.

You do not need to be married or in a civil partnership to make mirror wills. In fact, mirror wills are arguably more important for unmarried couples, because without them you have no legal safety net at all. For more detail, read our guide to mirror wills in Scotland.

Quick FAQs About Cohabiting Couples and Wills in Scotland

Do unmarried couples need a will in Scotland?

Yes. Unmarried couples have no automatic inheritance rights under Scots law. A will is the only reliable way to make sure your partner inherits from your estate.

Does living together for a long time give you the same rights as marriage in Scotland?

No. Scotland abolished common-law marriage in 2006. No matter how long you live together, you do not gain the same inheritance rights as a married couple.

Can a cohabiting partner make a claim on the estate without a will?

Under the Family Law (Scotland) Act 2006, a surviving cohabitant can apply to the court within six months of their partner’s death. However, the outcome is not guaranteed, the process is stressful, and the amount awarded is at the court’s discretion.

Can unmarried couples make mirror wills?

Yes. Mirror wills are available to any couple, whether married, in a civil partnership, or cohabiting. At ScottishWill, mirror wills cost £149 for both wills together.

What happens to our house if my partner dies without a will?

It depends on how the property is owned. If held as joint owners with a survivorship destination, it may pass to you automatically. If held as tenants in common, your partner’s share will be distributed under the intestacy rules – which do not include cohabiting partners.

Do pension nominations count as part of a will?

No. Pension death benefits and life insurance nominations are separate from your will. However, it is sensible to review both at the same time to make sure your partner is named as the beneficiary on all relevant policies.

Ready to Protect Your Partner?

If your situation is reasonably straightforward and you want to make sure your partner is looked after, you can start your Scottish will online here. The process usually takes around ten minutes, and your completed Will Pack is emailed to you within two business days.

Mirror wills for couples are available for a fixed fee of £149.

If you have any questions at all, you can contact us – we’re here to help.