Inheritance rights of cohabiting couples

Cohabiting couple families are the fastest growing family type and the second largest family type overall. Such family arrangements are however causing disputes when it comes to the estate of a deceased partner in a couple.

The importance of making a Will cannot be underestimated; to ensure that you provide financially for your loved ones and to ensure that your wishes are carried out just as you had intended.

Who can inherit if there is no Will?

Flint Bishop often deal with cases where a couple were not married and a client’s partner died without making a Will, or where there was a belief that a Will had been made but could not be located. This can have a profound impact on entitlement under the deceased’s estate. There is often a belief by a cohabiting partner that they are entitled to receive their partner’s estate as if they were the common-law spouse of the deceased however, this is not the case.

If there is no Will, then the rules of intestacy will ultimately determine how the deceased’s assets are distributed. Often what the surviving partner had envisaged they would automatically receive is unfortunately not the case. Under the intestacy rules, there is no provision that entitles a surviving cohabiting partner to inherit anything from their deceased’s partner’s estate. This is regardless of the length of time that the couple were cohobating together or even if they were engaged to be married.

The only situation in which the surviving partner would inherit any of their deceased’s partner’s assets, where there is no Will, is if they owned property together as joint tenants or they were nominated as being the receiving beneficiary under any insurance policies which the deceased held.

This can ultimately result in a great deal of heartache and costs being incurred for the surviving partner who had built up their future with the deceased and an unsatisfactory distribution of the estate if there are others who would benefit under the intestacy rules. An example of such a scenario is whereby the couple’s children are entitled to receive the estate, which would mean that the surviving partner would have to ultimately bring a claim against the children in order to try and seek to receive some of their partner’s estate.

Is there anything a cohabitee can do if their partner did not leave a Will?

The surviving partner can make a claim under the Inheritance (Provision for Family and Dependents) Act 1975 (“the Act”) to seek reasonable financial provision from the estate. The Act allows certain categories of people to make an application to the Court on the basis that a disposition of the deceased’s estate was (either under any Will they may have made or under the intestacy rules) does not make reasonable financial provision for them.

However, for such a claim to be brought, the following must be complied with under the Act which requires that the surviving partner:

1. Lived in the same household as the deceased
2. As the husband or wife of the deceased
3. For the whole of the period of two years immediately before the date when the deceased died.

Living in the same household

Case law has served to clarify that in terms of household; the test specified under the Act does not necessarily mean that the couple needs to have lived together in the same property for the full two year period. This, therefore, opens up the claim avenue to other couples, for example, elderly couples who lived apart for health reasons etc.

Court’s discretion

The Court has overall discretion as to what order to make under the Act and the case of Lewis v Warner served to highlight just that. This involved an elderly surviving partner who was considerably financially better off than his deceased partner and had fully expected not to receive anything under her estate. This was the first Court of Appeal Judgment dealing with the application of a cohabitee under the Act. It was decided that maintenance itself was a broad concept, not just purely financial, and that it could include the provision of a property for someone to live in. The surviving partner was, therefore, able to purchase the deceased’s property in which he resided with her, for full value. The deceased had been providing the partner with a home before she died and as such he was being maintained by her. This particular case did have some exceptional circumstances, however; overall it shows that the Court can make a wide range of orders under the Act.