A cohabiting partner ranks ahead of parents as nearest relative when arrangements are made for a deceased person’s remains, and the deceased’s own wishes are what the court seeks to give effect to.
Background
This was a painful case, and the sheriff closed his judgment by conveying his condolences to everyone involved.
HM was born in February 2003 and lived with her parents for most of her life. In May 2024 she was diagnosed with a brain tumour, and her condition was confirmed as terminal. In August 2024 she met JW, and they began a relationship within a week; she told him of her diagnosis on the day they met. She died in January 2026.
Her parents applied to the court for authority to make the arrangements for her remains. Her partner sought authority to have her cremated. The dispute between them was bitter, and the sheriff observed that the origin of those deeply held views on both sides was the love and affection each had for her.
The legal framework
The Burial and Cremation (Scotland) Act 2016 sets out who may make arrangements. HM had not made an arrangements on death declaration under section 65(8), so the question became who was her nearest relative for the purposes of section 65(2). That list places a surviving spouse or civil partner first, and a cohabitant in the same position, ahead of parents.
The court therefore had to decide whether JW was a cohabitant, meaning that they were living together as if married for a period of at least six months before her death. Counsel referred to section 25 of the Family Law (Scotland) Act 2006, which directs a court considering whether someone is a cohabitant to have regard to the length of the period of living together, the nature of the relationship during it, and the nature and extent of any financial arrangements. The point was contested, including on the basis of where JW had actually been living and where he claimed benefits from.
The decision
The sheriff found in fact and in law that for a period exceeding six months before her death HM and JW were neither married nor in a civil partnership but were living with each other as if they were married, and that HM had expressed in life a wish not to be buried.
JW was accordingly her nearest relative under section 65(2), and an order was made in his favour under section 68(1) of the 2016 Act authorising cremation. No expenses were found due to or by either party.
The sheriff’s reasoning on the central point was that the evidence considered as a whole, if not individually then cumulatively, pointed to cremation being her obvious wish, and that what she had said and written about her wishes could not be overridden by those who survived her, however much pain the outcome would cause.
What it means in practice
Two things follow, and both matter well beyond this case. A cohabitant of at least six months ranks ahead of parents as nearest relative under the 2016 Act, which frequently surprises families. And the whole dispute would have been avoided by an arrangements on death declaration under section 65(8), which is a short document recording what a person wants to happen.
Anyone who is living with a partner without being married should understand where they stand, and where their family stands. Our page on cohabitation and cohabitants’ rights in Scotland explains the position.