Greater rights for cohabitees on intestacy

It is thought that approximately 83% of unmarried partners have not made a will.  With at least 2.25 million cohabiting couples in England and Wales, and with this number thought to increase over coming years, a large number of people are therefore potentially leaving their loved ones in a legal position that is dramatically different to that of married couples or those in civil partnerships.

A common misconception is that after a few years of living together you will become “common law husband and wife”, however this concept hasn’t existed in England and Wales since 1753!  

The current law surrounding those that die without a will (ie intestate) does not make any provision for a cohabitant that is left behind.  Currently a cohabitant can bring a claim against their partner's estate under the Inheritance (Provision for Family and Dependants) Act 1975 if they have been living together for 2 years or more, but they have no automatic right under the current intestacy rules.

There have been some recent changes to the law surrounding intestacy, for example, on 1 February 2009 civil partners were given the same rights as husband and wife when one partner dies intestate, but there has been no change for those that die intestate leaving a cohabitant.   

For as many as 25 years in a number of other common law jurisdictions such as New Zealand, South Australia and New South Wales cohabitants have had an automatic right to share in a partners estate on death.

Research over the past 20 years has shown that the general public favour in England and Wales is for cohabitants to have automatic rights through intestacy.  The Government is therefore feeling pressure to bring the law into line with public expectation and as such The Law Commission has produced Consultation Paper No 191 ‘Intestacy and Family Provision Claims on Death’, published on 29 October 2009.  

The Consultation Paper proposes that cohabiting partners, including gay couples, will be entitled to at least a proportion of their partners estate automatically if the deceased partner did not leave a will.  A cohabitant who has a child with the deceased would be entitled under the intestacy rules to the same entitlement as a spouse regardless of how long they had been living together.  For those cohabitants without children and who had been living together for at least 5 years they would also be entitled to the same interest that a spouse or civil partner would be entitled to.  For those cohabitants that had been living together for between 2 and 5 years before the death, the surviving partner would be entitled to 50% of the amount which a spouse would have received from the estate.    

These proposals would create an automatic legal position which would save cohabitants from expensive and lengthy litigation above under the Inheritance (Provision for Family and Dependants) Act 1975.  

Having said that, the best course of action is, of course, to make a will whether these proposals are bought into force or not.

The consultation comes to an end on 28 February 2010.

 Ashfords LLP is regulated by the Solicitors Regulation Authority. The information in this note is intended to be general information about English law only and not comprehensive. It is not to be relied on as legal advice nor as an alternative to taking professional advice relating to specific circumstances.