21/12/2011

Law Commission recommendation to reform intestacy rules for cohabitants

On 14th December 2011 the Law Commission published recommendations to reform the intestacy rules. The proposals include provisions that would give inheritance rights to unmarried cohabitants in certain conditions.

Background

An increasing number of couples now live together, start a family, and have mutually dependent finances, without marrying. Research demonstrates that these cohabitants are less likely to have made a Will compared with couples who are married.

Under the current intestacy rules those who cohabit but are not married do not automatically inherit any of their partner’s estate when their partner dies without leaving a valid Will. This is regardless of whether the two have children and has no regard to the duration of the cohabitation.

The surviving partner is currently able to apply to Court to claim reasonable financial provision under the Inheritance (Provision for Family and Dependants) Act 1975 (“1975 Act”). Whilst this may result in provision being made on similar terms to the entitlement of a surviving spouse, it may also involve costly litigation against other family members of the deceased.

The proposed changes intend to modernise the law to reflect these modern family structures and minimise the need to resort to litigation.

Proposals

The solution proposed by the Law Commission is to provide cohabitants who meet certain criteria with an automatic right to inherit from their deceased partner’s estate, similar to the rights of a spouse.

In summary, cohabiting partners will be given an entitlement to inherit following the death of their partner who died without a valid Will if:

  • they have lived together continuously for at least five years lasting until death; or
  • they have lived together continuously for at least two years, and had a child together, and were living in the household at the date of death.

The proposed changes should result in fewer 1975 Act claims as fewer cohabitants need to litigate in order to inherit. However other beneficiaries, who but for the cohabitant would have inherited, may decide to litigate. The biggest impact will be on adult children who are not the children of the surviving partner, who may find it difficult to establish a claim under the 1975 Act.

Summary

The proposals are currently only recommendations to government to implement change. Until implemented disappointed beneficiaries, including unmarried cohabitants, can still make a claim under the 1975 Act. Alternatively, cohabitants should execute Wills detailing their wishes in an attempt to avoid any dispute following their death.

If you would like any further information, please contact James Laycock, partner on 0113 227 0382 or at james.laycock@gordonsllp.com.