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Living Dangerously – Cohabitees and matters of life and death

10 Jun 2019

Cohabiting couples account for the fastest growing and second largest family type according to recent figures published by the Office for National Statistics. At present there is an estimated 3.3 million cohabiting couples in the UK and many are currently unaware of their legal rights.

Unfortunately, the legal rights of cohabitees are limited, especially when compared to married couples and civil partners, and many people still believe in the myth that is “common law marriage”. As a result, many cohabitees fail to make arrangements for events such as death, separation and loss of capacity or ill health and many cohabiting couples will often find that the division of finances, debt and property can be rather complicated on separation or if one of the partners dies.

The Rules of Intestacy

The Rules of Intestacy set out a strict guide as to who inherits if an individual dies without leaving a valid Will and determine how your property is to be distributed upon your death.  This includes property (depending on how this is held), bank accounts, securities and any other assets that you own at the time of your death.

Cohabitees would not be entitled to anything under the estate of their deceased partner unless assets were owned jointly and passed automatically by survivorship; in this case, such assets would fall outside the scope of the Rules of Intestacy.

Furthermore, if the deceased left surviving children they would likely inherit under the Rules of Intestacy.  Unfairly, you may think,  the surviving cohabitee would find that all of, or the majority of, the assets held by their deceased partner are now owned by their children.

The Inheritance (Provision for Family and Dependants) Act 1975

If the surviving partner is left in a vulnerable position, it may be necessary to bring a claim against their deceased partner’s estate under the Inheritance (Provision for Family and Dependants) Act 1975 (“the Act”).  Under the Act, a surviving partner can make a claim against their deceased partner’s estate. However, the surviving partner is required to satisfy the following rules:

  1. they must have lived in the same household as the deceased;
  2. lived as husband or wife of the deceased; and
  3. had continuously cohabited for at least 2 years immediately preceding the death of the deceased.
Emma Etherington

The purpose of the Act allows the surviving partner to make a claim for reasonable financial provision from their deceased partner’s estate. However, the Act is not solely limited to surviving partner’s making a claim. Those categories of people who can make a claim against an estate are as follows:

  • spouses;
  • ex-spouses (who have not remarried);
  • cohabitees;
  • children;
  • individuals treated as children; and
  • dependants

It is important to note that a claim under the Act can be made even if there is a Will in place.  An individual would have to make an application and satisfy the Court that they have not been provided with sufficient provision from the deceased’s estate.  In such circumstances, a Court could ensure that reasonable maintenance and reasonable provision is made to the claimant.

For those who currently cohabit, or are considering to, it is important to ensure that your partner is well looked after should the unthinkable happen. Given that the cost and benefits of having a valid Will  certainly outweigh the costs and stress of dying Intestate, we would recommend preparing a Will.

For more information on any of the above, or how we can help you, please contact Emma Etherington, or call 0191 232 8345.