INTRODUCTION: THE DEVELOPMENT OF THE LEGAL POSITION OF THE URVIVING COHABITANT

Different legal systems provide different answers to the question of whether cohabitants should receive protection in inheritance law, and the way in which any protection should be given. The perspectives of Nordic legislators in this context are accounted for in Chapter 1 and section 4.10 of this book.

Compulsory or declaratory protection; the international trend: Protection in inheritance law may require cohabitants to actively seek such protection, for example through registration, an agreement, a will or a declaration. The protection however may also be declaratory, so that the initiative lies with those cohabitants who do not wish to be covered. Specific factual criteria must oft en be fulfilled before such arrangements apply. The factual criteria may be that they have children together or have cohabited for a certain duration. Although there exist different forms of protection for the surviving cohabitant around the world, and the scope of the protection varies, the international trend is for the rules to make less of a distinction between spouses and cohabitants.

Former Yugoslavia: Inheritance law has protected cohabitants in the former Yugoslavia since the 1970s. Croatia and Slovenia currently provide inheritance rights to cohabitants who have lived together for at least three years, or who have children together. These inheritance rights do not require registration of the relationship. There must not however be any legal obstacles to cohabitants marrying (age, civil status, kinship, etc.). Kosovo also provides a form of inheritance rights to surviving cohabitants.

Autonomous Spanish regions: Cohabitants enjoy inheritance rights in most of the autonomous regions of Spain, but the Spanish Civil Code, which applies to the rest of Spain, does not grant cohabitants inheritance rights. Cohabitants have the same inheritance rights as spouses in Catalonia, Navarre, the Basque Country, Galicia and the Balearic Islands. According to Catalan law, which is based on the most recent legislation on inheritance law in Spain, cohabitants receive inheritance rights after two years of cohabitation. These rights may also come into effect however before two years have elapsed if the cohabitants have a child together or make a declaration to a notary public that they are cohabitants.