With the average wedding costing more than £20,000, it’s no surprise that almost one in five couples now choose to live together rather than tie the knot.

Cohabiting couples often presume that they will be afforded the same inherent rights as a married couple upon their partner’s death. Unfortunately, a surviving cohabitant has no automatic right to their partner’s estate if their partner dies without a will.

Scots law does recognise the concept of “cohabiting couples” and allows live-in partners to make a claim against a deceased partner’s estate within six months of his or her death. However, it’s a financially and emotionally costly process, which requires the surviving partner to be recognised by thecCourt as a cohabitant and can pitch them against other family members of the deceased.

The first hurdle to making a cohabitant’s claim is to identify who the executors of the deceased are, which is not always easy. If they can be identified, an application for a cohabitant’s claim can be made to the court. Many claims fall at this stage.

Once an application is made to the court, the court will decide whether the surviving partner can be treated as a cohabitant, considering the length of time they lived together, the nature of their relationship and any financial arrangements between them. Many people find it distasteful to think that the court is placing such a value judgement on a private relationship.

If the court agrees that the applicant was a cohabitant, they will then decide whether the applicant should be entitled to an award and, if so, how much. The maximum amount is what the cohabitant would have received if they had been married or in a civil partnership. Where the deceased did not have children, this could potentially be the entire estate.

The challenge of lodging a claim within the existing timeframe of six months - especially as those affected are also grieving - has been recognised and reform has been promised.

The Trusts and Succession Scotland Act 2024, published earlier this year, committed to extending the deadline for making a cohabitant’s claim from six to 12 months. But contrary to public opinion, and even some legal advisers, this part of the Act is not yet in force, and there is a significant risk that recently bereaved partners may miss the six-month deadline, thinking that they have 12 months.

The Scottish Government has committed to undertake a consultation on cohabitants’ rights as part of a wider-ranging review of family and succession law. While this is to be welcomed, the delay in implementing reform leaves many live-in partners vulnerable and may, in some cases, prevent them from raising a claim against an intestate estate on the death of their partner.

The sooner there is clarity, and the time frame is increased, the better. Everyone hopes for a long and happy life together, but the only way to control what a surviving loved one receives from your estate after death is to make a will.

Sue Arrowsmith Rodger is a wills, trusts and succession legal director at Thorntons Law​.

Agenda is a column for outside contributors. Contact: agenda@theherald.co.uk