Section 29 at 20: Cohabitation and Intestate Claims

Written by Isabelle Douglas

On 4th May 2026, it was twenty years since the Family Law (Scotland) Act 2006 came into force, bringing with it significant reforms for cohabiting couples.

One such reform was a provision, set out at Section 29, which permits the survivor of a cohabiting couple to make a claim against the deceased cohabitant’s estate where the deceased was domiciled in Scotland immediately prior to his or her death and died intestate, i.e. without a Will. This provision was enacted because it was recognised that a cohabitant should be entitled to seek some financial benefit on the death of his or her partner. Whilst making a Will is a relatively cheap and straight forward task, recent research has revealed that more than two-thirds of cohabitees are unaware of the potential consequences if they died without a Will.

To make a claim, an application must be made to the Court. The survivor is entitled to seek a capital sum payment, the transfer of heritable or moveable property belonging to the deceased or an interim order. Often the subject of a claim is the family home where the couple lived together. Whether or not to make an award is entirely discretionary and in exercising its discretion, the Court is required to have regard to:-

1. The size and nature of the deceased’s estate;
   
   
2. Any benefit received or to be received by the survivor as a consequence of the deceased’s death from somewhere other than the deceased’s estate, for example from a pension, death in service benefit or life policy;
   
   
3. The nature and extent of any other rights or claims against the deceased’s estate, for example from any children of the deceased;
   
   
4. Any other matter the Court considers appropriate;

It is important to bear in mind that the legislation specifically states that any order or interim order shall not award the survivor more than a surviving spouse or civil partner would receive. Furthermore, an application must be made within six months of the date of the deceased’s death, otherwise the action is time barred.

In practice, this requires an Initial Writ (the document that starts the court process) to be warranted by the court and served on the executors of the deceased’s estate within the six-month time limit but this can prove challenging if executors have not been appointed timeously. Where executors have not been appointed, the action must be served on anyone having an interest in the deceased’s estate. This can be burdensome, particularly within a tight timeframe.

Making a Will is undoubtedly the best way to make provision for your loved ones, as it minimises the uncertainty and cost associated with litigation at an emotional time, and leaves the decision making in the hands of the deceased. However, the innovation introduced by Section 29 twenty years ago at least provides some recourse where no Will has been made.