If your partner has passed away without leaving a will, and you were living together, you may have rights under Section 29 of the Family Law (Scotland) Act 2006.

What Is Section 29?

Section 29 allows unmarried partners (cohabitants) to make a financial claim from their deceased partner’s estate if they died intestate (without a will) and lived in Scotland before death.

To qualify for a claim:

• The deceased must have lived in Scotland.
• The surviving partner must prove they were cohabiting at the time of death.

The court may award:

• A cash sum, or
• Specific property or possessions from the estate.

Key Limitations of Section 29

• Strict Time Limit: A claim must be lodged with the court, warranted and served within 6 months of the date of death. Missing this deadline often makes a claim impossible.
• Maximum Award: The award cannot exceed what a spouse or civil partnerwould have received under intestacy law.
• Application: Section 29 only applies if there is no will. If there is a will, the cohabitant has no automatic rights – unlike in England and Wales.

Main Criticisms of Section 29

1. Unclear Definition of “Cohabitant”

Section 25 defines a cohabitant as someone living with another “as if they were spouses or civil partners,” but offers no clear duration or criteria. Courts consider:

• Length of the relationship
• Shared finances or home
• Children together
• Public presentation as a couple

This creates uncertainty for claimants and solicitors alike.


2. No Clear Purpose or Guidance

The legislation lacks a defined goal which means a sheriff must interpret vague criteria without clear statutory direction.


3. Executor and Timing Issues

• In some cases, families delay appointing an executor to block a Section 29 claim.
• A legal process called “cognitionis causa tantum” can still allow a claim, but it’s complex and technical.
• Courts have confirmed this process is valid, but risky.

Important Section 29 Case Law in Scotland

• Chebotareva v King’s Executrix (2008): Claim rejected—deceased was not domiciled in Scotland.
• Savage v Purches (2009): Claim refused—partner had already received a substantial pension.
• Windram v Giacoppazi (2009): House and £34,000 awarded to assist with mortgage and children.
• Kerr v Mangan (2014–15): Confirmed Section 29 is part of succession law. Foreign property not included.
• Hendry v Bruce (2014): Claim rejected—court papers were received after the 6-month deadline.
• Courtney’s Executors v Campbell (2016): Strict deadline enforced, even in sympathetic circumstances.

Legal Conflicts Involving Children

If the cohabitant is also the parent and legal representative of the child who inherits the estate, a conflict of interest may arise. In such cases a court may appoint a curator ad litem (independent guardian).

Suggested Legal Reforms

The Scottish Law Commission and many legal professionals recommend:

• Extending the 6-month time limit to 12 months.
• Allowing claims even when there is a will.
• Clarifying the legal definition of a cohabitant.
• Giving courts clearer objectives and structured guidelines.

Contact xkSolicitors today for advice on your potential claim under Section 29.

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