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According to the Office for National Statistics, the number of cohabiting couples in England and Wales has risen by 25% from 4.8 million to over 6 million between 2011 and 2021, whilst marriage rates have fallen to their lowest since 1862. Due to this, it is more important than ever that cohabitees are aware of their rights to inherit from their partner's estate if their loved one passes away, as issues can arise, resulting in a deceased's partner having to contest a will.
Laws of Intestacy
When someone dies without leaving a Will, they are said to have died “intestate”. If this happens, a complex set of laws will apply and only take into account people who are legally married or formed civil partnerships and blood relatives. Cohabitees (sometimes referred to as common law husbands/wives) are excluded.
Can cohabitees bring a claim?
If a partner has been cohabiting with the Deceased for a significant period of time, they may incorrectly assume that the laws of intestacy automatically grant them protection. The partner of the Deceased may need to consider a claim under the Inheritance (Provision for Family and Dependants Act) 1975 (“the Inheritance Act”).
For a cohabitee to be eligible to bring a claim under the Inheritance Act, they must have been living in the same household as their partner “as husband and wife” for the entire two-year period ending immediately before the date of the Deceased’s death.
Each case is very fact-specific, and the courts have adopted a flexible approach when interpreting the two-year period and the term “as husband and wife”. For example, the courts have allowed cases whereby the cohabiting couple has lived part of the week in separate households.
If the court finds that a cohabitee satisfies the two-year period, the next step will be for the court to determine the following:
- Has reasonable financial provision been made for the cohabiting partner from the estate?
- If not, what provision needs to be made to satisfy their maintenance needs? For further information in relation to the court’s assessment of “maintenance need”, please see our blog I have been left out of a Will – what can I do? The Inheritance (Provision for Family and Dependants Act) 1975 Act – Can I make a claim?
The answers to the above questions need to be carefully considered on a case-by-case basis.
Proposals for reform
The Government is aware of the lack of legal protection afforded to cohabiting partners under the laws of intestacy. The Women and Equalities Committee published a report on 4 August 2022 which made a series of proposals for cohabitation law reform (link to report: The rights of cohabiting partners - Women and Equalities Committee (parliament.uk). The Government, however, rejected the proposals stating that they would adopt a “cautious” approach in this area as the “issue has the potential to be divisive and contentious”.
The position, therefore, remains that if you want your cohabiting partner to inherit from your estate, you should ensure provision is made for them in your Will, or they may be faced with the prospect of bringing a claim under the Inheritance Act.