Quick Summary
- Common law marriage does not exist in Scotland — it was abolished by the Family Law (Scotland) Act 2006, yet 51% of people still believe it does
- Cohabitants inherit nothing automatically — if your partner dies without a will, you must apply to court within 12 months for a discretionary award that is not guaranteed
- No spousal IHT exemption — married couples can pass assets tax-free on death, cohabitants cannot, potentially triggering a 40% Inheritance Tax bill
- Use our free calculator — the Scottish Intestacy Calculator shows exactly who inherits what under Scottish law
Scotland saw an 80.8% increase in cohabiting couples between 2001 and 2022. Yet the legal protections for these couples remain dramatically weaker than for married couples or civil partners — and most don't know it until it's too late.
Quick Answer: Common law marriage was abolished in Scotland in 2006. Cohabiting partners have no automatic right to inherit, no right to the family home, no spousal IHT exemption, and no pension sharing on separation. If your partner dies without a will, you must apply to court within 12 months for a discretionary award — which the court can refuse. The only way to protect yourself is a cohabitation agreement or marriage. Check what happens to your estate with our Scottish Intestacy Calculator.
The myth that won't die
A UK poll found that 51% of people incorrectly believe cohabiting couples have the same legal rights as married couples. They don't — not in Scotland, not in England, not anywhere in the UK.
The term "common law marriage" has no legal meaning in Scotland. It was abolished by the Family Law (Scotland) Act 2006. Before that, it had extremely limited recognition. Today, regardless of how long you've lived together, how many children you have, or whether everyone considers you a couple, the law treats you as two separate individuals sharing a house.
What cohabitants DON'T get in Scotland
| Right | Married couples | Cohabiting couples |
|---|---|---|
| Automatic inheritance | Yes (prior rights + legal rights) | No — must apply to court |
| Right to family home | Yes (occupancy rights) | No automatic right |
| IHT spousal exemption | Yes (unlimited tax-free transfer) | No — estate taxed at 40% above threshold |
| Pension sharing on separation | Yes (court can order sharing) | No |
| Financial provision on separation | Yes (extensive court powers) | Limited (court can award capital sum) |
| Next of kin status | Automatic | Not automatic |
| Parental rights | Automatic for both parents | Mother automatic, father must register birth jointly or get court order |
The financial consequences are severe. If one partner dies owning a house worth £300,000, a married surviving spouse inherits it automatically. An unmarried partner has no automatic right to it — the house could pass to the deceased's parents or siblings under intestacy rules.
What happens when a cohabitant dies without a will
Under Scottish intestacy law (the rules that apply when there's no will), cohabitants inherit nothing automatically. The estate is distributed through prior rights (spouse only), legal rights (spouse and children), and free estate (children, then parents, then siblings).
A surviving cohabitant can apply to the court under Section 29 of the Family Law (Scotland) Act 2006 for a discretionary award. But this:
- Must be done within 12 months of the death (extended from 6 months by the Trust and Succession Act 2024)
- Is discretionary — the court can refuse
- Is capped at what the cohabitant would have received if they'd been a spouse (but usually much less is awarded)
- Requires legal representation (costs £2,000–10,000+)
Try it yourself
Enter your family structure and estate to see exactly who inherits under Scottish law — and what your cohabitant gets (spoiler: nothing automatically).
Open Scottish Intestacy CalculatorNo sign-up required.
The Inheritance Tax trap for cohabitants
Married couples and civil partners can transfer unlimited assets to each other on death with zero Inheritance Tax. This is the single most valuable tax exemption in the UK.
Cohabitants get none of this. If your unmarried partner dies and leaves you their estate, IHT applies at 40% on everything above the nil-rate band (£325,000). On a £500,000 estate:
- Married couple: £0 IHT (spousal exemption)
- Cohabiting couple: £70,000 IHT ((£500,000 - £325,000) × 40%)
That's a £70,000 tax bill that wouldn't exist if you were married. The Residence Nil-Rate Band (£175,000) may apply if the home passes to direct descendants, but it doesn't apply when passing to a cohabiting partner.
What you can do to protect yourself
Option 1: Get married or enter a civil partnership
This is the most comprehensive protection. Marriage or civil partnership gives you automatic inheritance rights, IHT exemption, pension sharing, and occupancy rights to the family home. A simple registry office ceremony costs £70-150.
Option 2: Write a cohabitation agreement
A cohabitation agreement is a legal document setting out what happens to finances, property, and possessions if you separate or one partner dies. It can cover:
- Who owns what property and in what shares
- How joint expenses are split
- What happens to shared assets on separation
- Financial provision for children
Cost: typically £500-1,500 through a solicitor. Both partners need independent legal advice.
Option 3: Write a will
A will ensures your partner inherits what you want them to have. Without one, Scottish intestacy rules apply and your cohabitant gets nothing automatically.
Cost: £150-400 through a solicitor. Both partners should have wills.
Option 4: Life insurance in trust
A life insurance policy written in trust pays out directly to your partner on death, bypassing the estate entirely. This means it's not subject to IHT and isn't affected by intestacy rules.
Separation: where cohabitants lose most
The inheritance gap gets the headlines, but the financial gap on relationship breakdown is arguably worse. When a married couple divorces in Scotland, the court has extensive powers to divide assets fairly under the Family Law (Scotland) Act 1985. For cohabitants, the picture is dramatically different.
Financial rights on separation: married vs cohabiting
| Right | Married couples | Cohabiting couples |
|---|---|---|
| Division of property | Court divides "matrimonial property" (assets acquired during marriage) fairly | No automatic right to share property |
| Pension sharing | Court can order pension sharing orders | No right to partner's pension |
| Spousal maintenance | Court can award ongoing financial support (periodical allowance) | No right to maintenance |
| Capital payment | Court can order lump sum payments | Limited — court may award a capital sum under s.28 of 2006 Act |
| Time limit to claim | No time limit (claim during divorce process) | Must claim within 1 year of separation |
| Family home | Automatic occupancy rights during divorce | No automatic right — may need to leave |
The s.28 claim: a cohabitant's only option
Under section 28 of the Family Law (Scotland) Act 2006, a former cohabitant can ask the court for a capital sum if they've suffered "economic disadvantage" from the relationship. But this is narrow:
- You must prove you gave up something (a career, a home, financial opportunity) because of the relationship
- The claim must be made within 1 year of the date you stopped living together
- Awards are typically modest — courts rarely award anything close to what a spouse would get on divorce
- Legal costs (£5,000–£20,000+) can exceed the award itself
A cohabitant who gave up their career to raise children, supported their partner through a business start-up, or contributed to a property held in their partner's name may get very little on separation. A married person in the same position would receive a fair share of matrimonial assets.
If you're cohabiting in Scotland and you've made financial sacrifices for your relationship — such as reducing your working hours, giving up a career, or contributing to your partner's property — you are significantly more vulnerable on separation than a married person. A cohabitation agreement drawn up by a solicitor (£500–£1,500) is the only reliable protection.
Scotland vs England: cohabiting rights compared
| Feature | Scotland | England |
|---|---|---|
| Automatic inheritance | No | No |
| Court application for provision | Yes — within 12 months | Yes — under Inheritance Act 1975 |
| Financial provision on separation | Limited (capital sum) | None — no legal provision |
| Occupancy rights to family home | Can apply to court | None unless jointly owned |
Scotland actually offers slightly more protection than England for cohabitants — the Family Law Act 2006 allows a court to award a capital sum on separation, which England doesn't provide. But "slightly more than nothing" is still very little.
Try it yourself
See exactly how your estate would be distributed under Scottish intestacy rules — and why a will is essential for cohabiting couples.
Open Scottish Intestacy CalculatorNo sign-up required.
Frequently Asked Questions
Does common law marriage exist in Scotland?
No. Common law marriage was abolished by the Family Law (Scotland) Act 2006. Regardless of how long you've lived together, you have no automatic rights as a cohabiting partner. The only way to gain the legal protections of marriage is to actually get married or enter a civil partnership.
Can my cohabiting partner inherit my house if I die?
Not automatically. Under Scottish intestacy rules, the house passes through prior rights (spouse only), legal rights, and free estate — none of which include cohabitants. Your partner would need to apply to court within 12 months for a discretionary award. To guarantee your partner inherits, write a will.
Do we need separate solicitors for a cohabitation agreement?
Yes. Both partners should receive independent legal advice for the agreement to be robust. Using the same solicitor creates a conflict of interest. Expect to pay £500-1,500 total for both partners.
What if we have children together — does that change our rights?
Having children doesn't give cohabiting partners inheritance rights over each other's estate. The children themselves have legal rights (legitim) under Scottish intestacy law, but the surviving parent — if not married — does not automatically inherit. Parental rights are separate from inheritance rights.
Is it true that living together for X years gives you automatic rights?
No. This is the most persistent myth about cohabitation in Scotland (and the UK generally). There is no length of time after which cohabiting couples gain automatic legal rights equivalent to marriage. Whether you've lived together for 2 years or 20 years, the legal position is the same.
Related Articles
- Scottish Intestacy Rules — the full guide to who inherits without a will
- Marriage Allowance Scotland — tax benefits of marriage
- Scottish Benefits Guide — benefits available to Scottish households
- Scottish Income Tax Rates — understand the tax system
- Scottish Intestacy Calculator — see who inherits your estate
This article is for informational purposes only and does not constitute financial, tax, or legal advice. Tax rates and thresholds can change — always verify current rates with Revenue Scotland, HMRC, or mygov.scot, and speak to a qualified financial adviser for advice specific to your circumstances.
Sources: Scottish Government — Family Law (Scotland) Act 2006, Trust and Succession (Scotland) Act 2024, Citizens Advice Scotland — Living together