What happens if someone dies without a will in Scotland?
Prior rights, legal rights, who inherits in what order, and where that leaves unmarried partners.
Read the guideThe short answer
An unmarried partner, known in Scots law as a cohabitant, has no automatic right to inherit when there is no will. But they can apply to the court for a share of the estate under section 29 of the Family Law (Scotland) Act 2006. The claim must be raised and served within six months of the death. The court decides how much to award, up to what a husband, wife or civil partner would have received. The claim is not available if there is a valid will. A partner may also be entitled to things that pass outside the estate, such as a share of a jointly owned home.
Many couples in Scotland live together for years without marrying, and many assume that the law treats them as if they were married. It does not. When one partner dies without a will, the rules of intestacy pass the estate to their relatives, which may be their children, parents, or brothers and sisters, and the surviving partner is not on the list. Section 29 gives them a way to ask the court for provision, but only if they act quickly.
Who counts as a cohabitant?
Under section 25 of the 2006 Act, a cohabitant is a member of a couple who were living together as if they were married to each other. When deciding whether someone qualifies, the court looks at:
- how long the couple lived together;
- the nature of their relationship during that time;
- their financial arrangements, such as shared bills, joint accounts or a jointly owned home.
There is no minimum period, and the law applies to opposite-sex and same-sex couples alike. The couple must have been living together immediately before the death, and the person who died must have been domiciled in Scotland.
The conditions for a section 29 claim
| Condition | What it means |
|---|---|
| No valid will | The person died without a will, or part of their estate is not dealt with by their will |
| Domiciled in Scotland | The person who died treated Scotland as their permanent home |
| Living together at the time of death | The couple were cohabiting immediately before the death |
| Within six months | The court action must be raised and served within six months of the date of death |
| In the right court | The sheriff court where the person was habitually resident, or the Court of Session |
The six-month time limit
This is the part that catches people out. The application must be made within six months beginning with the day of the death, and in practice the court action needs to be raised and served on the executor within that time. There is no general power for the court to extend it, and claims lodged even a day late can fail.
Section 78 of the Trusts and Succession (Scotland) Act 2024 will extend the limit to twelve months, but that section had not been brought into force as at September 2026. Until it is, six months applies. The Scottish Government's 2025 consultation on family law noted a further practical problem: an executor may not be appointed quickly, which can make it hard to know who to raise the claim against.
If you think you may have a claim, speak to a solicitor within the first few weeks. The time it takes to gather information and prepare a court action can easily use up most of the six months.
What the court can award
If the court is satisfied that the applicant was a cohabitant, it can order:
- a capital sum paid out of the estate, which can be paid on a set date or in instalments;
- a transfer of property from the estate, such as the house or a car;
- an interim order while the case is decided.
In deciding what to award, the court must consider the size and nature of the estate, any benefit the partner has received or will receive because of the death from outside the estate, such as a pension, a life policy or a jointly owned house, and any other rights or claims against the estate. It can also take into account anything else it considers relevant.
There is a ceiling. The award cannot be more than the partner would have received if they had been the spouse or civil partner of the person who died. Awards are discretionary, so each case depends on its own facts, and there is no fixed share.
What estate is the claim made against?
The claim is made against the net intestate estate. That is what is left after inheritance tax and the estate's debts, and after the prior rights and legal rights of any surviving husband, wife or civil partner. So if the person who died was still married to someone else, even though separated, the spouse's rights come first.
A typical example
A couple together for 14 years
A man dies without a will after living with his partner for 14 years in a flat in his sole name. He had two adult children from an earlier relationship and was never married. Under the intestacy rules, his whole estate passes to his children. His partner applies to the sheriff court within six months. The court considers the length of the relationship, the fact that the flat was their home, and a small pension she receives as his nominated beneficiary. It can order a capital sum, or a transfer of the flat, but no more than she would have received as his wife.
What if there is a will?
A section 29 claim is only possible where there is no valid will. If the will leaves the partner something, that is what they receive. If it leaves them nothing:
- There is no court claim for provision. Unlike children and spouses, cohabitants have no legal rights.
- The will may be challenged if there are grounds, such as lack of capacity or undue influence. If the challenge succeeds, the estate may become intestate, which could open the way to a section 29 claim. Because of the six-month limit, solicitors often raise a protective section 29 action within the time limit and ask the court to pause it while the will challenge is decided. See our guide on contesting a will in Scotland.
- The beneficiaries can choose to share. They can give part of their inheritance to the partner using a deed of variation, which can also be tax efficient.
Other things a surviving partner may be entitled to
Even without a will, several things can pass to a partner outside the intestacy rules. It is worth checking each of these straight away:
- A jointly owned home. If the title deeds contain a survivorship destination, the partner's share passes automatically to the survivor.
- Joint bank accounts. The bank will usually let the surviving holder keep using the account, although in Scots law ownership of the money can depend on who paid it in.
- Pensions and life policies. Many pay out to a nominated person or through a trust, outside the estate.
- Household goods. Under section 26 of the 2006 Act, household goods bought during the relationship are presumed to be owned equally, unless it is shown otherwise.
- A council or housing association tenancy. A cohabiting partner who lived in the home can usually take over the tenancy, subject to conditions.
- Bereavement benefits. A cohabiting partner with dependent children may be able to claim Bereavement Support Payment.
Remember that anything a partner receives can be taken into account by the court when it decides a section 29 claim.
Tax for unmarried partners
The inheritance tax exemption for spouses and civil partners does not apply to cohabitants. Anything passing to an unmarried partner, whether under a will, by survivorship or through a court award, uses the ordinary allowances. Our guide to inheritance tax in Scotland explains the thresholds.
Is the law changing?
Beyond the twelve-month time limit that is waiting to come into force, the Scottish Government consulted between December 2025 and April 2026 on wider reform of cohabitants' rights, including whether a new definition of cohabitant should apply to claims on death. Until any new law is passed and in force, the current rules described here apply.
How to protect your partner
- Make wills. A will is the only reliable way to make sure your partner inherits, and it avoids the need for a court claim.
- Check how your home is owned. A survivorship destination in the title means the survivor takes the deceased partner's share automatically.
- Update pension and life policy nominations.
- Consider a cohabitation agreement setting out who owns what.
How we can help
If your partner has died without a will, contact us as soon as you can, because the six-month limit leaves little room. We can check whether you qualify, protect your claim, and negotiate with the family and the executor. If you are an executor facing a claim from a partner, we can advise you too. Talk to our executry solicitors in Glasgow, Hamilton, East Kilbride or Dumfries. Our guide on what happens if someone dies without a will explains who inherits instead.
Frequently asked questions
Does an unmarried partner inherit anything in Scotland if there is no will?
Not automatically. The intestacy rules only give rights to a spouse, civil partner and relatives. A surviving cohabitant can, however, apply to the sheriff court or the Court of Session for a share of the estate under section 29 of the Family Law (Scotland) Act 2006.
How long does a cohabitant have to make a claim in Scotland?
Six months from the date of death. The court action must be raised and served within that time, and the courts apply the limit strictly. The Trusts and Succession (Scotland) Act 2024 will extend it to twelve months, but that change had not come into force as at September 2026, so six months still applies.
How much can the court award a surviving cohabitant?
It is up to the court. It looks at the size and nature of the estate, anything the partner received from elsewhere because of the death, such as a pension or life policy, and any other claims on the estate. The award cannot be more than the partner would have received if they had been married to, or in a civil partnership with, the person who died.
Can a cohabitant claim if their partner left a will?
No. A section 29 claim is only available where the person died without a valid will, or where part of their estate is not covered by the will. If the will leaves the partner nothing, their only options are usually to ask the beneficiaries to share voluntarily, or to challenge the will itself, which should be done with advice as soon as possible.
Does an unmarried partner pay inheritance tax?
The spouse and civil partner exemption does not apply to unmarried partners. Anything passing to a cohabitant, whether under a will, by survivorship or through a court award, is covered only by the ordinary inheritance tax allowances.
Need help with an estate?
Our executry solicitors can take the whole process off your hands, or answer a single question. Your first appointment is free.
This guide is general information about Scots law, correct at the date shown. It is not legal advice for your circumstances.
