Cohabitation: Inheritance Rights

Many are surprised to learn that there is no such thing as a common-law wife. If your partner dies without making a will, does not provide for you in his/her will or does not make "reasonable financial provision" for you, you will have little choice but to rely on the generosity of those who did inherit or bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975 (the I(PDF)A '75). 

How does the I(PDF)A '75 work?

You must clear a few hurdles before you can rely on this useful piece of legislation:

  1. Did the deceased die domiciled in England or Wales?
  2. Do you have proof of death?
  3. Has the grant of probate or letters of administration been issued; and, if so, have six months or less passed since it was issued? It is possible to seek the court's permission to apply outside of the time limit but that is a separate discussion and not a route that we would recommend if it can be avoided.

How do I qualify?

The cohabitee/partner must establish the following:

  1. They cohabited for the whole of the two years prior to the death; 
  2. They lived in the same household; and
  3. They were living together as husband and wife or civil partners.

The court considers practical matters such as the need to be separated for short periods due to working away, hospitalisation, or going into a care home. In Baynes v Hedger, it was found that the relationship needs to be publicly known or acknowledged.

Under the Civil Partnership Act 2004, same-sex claimants can rely on the IPFDA '75 with the evidence required being whether they were living as if in a civil partnership.

What can I claim?

Under the IPFDA '75, the claim is as follows:

'… that the disposition of the deceased's estate effected by his will or the law relating to intestacy, or the combination of his will and that law, is not such as to make reasonable financial provision for the applicant.' IPFDA '75 s1(1)

In short, you have not been sufficiently provided for. But, in the case of a cohabitee and most other categories of claimants, the legislation goes on to say that the claim is for '… such financial provision as it would be reasonable in all the circumstances of the case for the applicant to receive for his maintenance.' IPDFA '75, s1(2)(b)

The court is not restricted by the word "maintenance". It tries to achieve what is fair. For example, a property could be purchased for the claimant where there is a housing provision need. 

Further relevant factors include the duration of the cohabitation, the standard of living enjoyed by the couple, the size of the estate (the smaller the estate, the harder it is to divide it up), the competing interests of claimants and beneficiaries and their respective financial needs and resources and the conduct of the claimant. All of these are weighed up and balanced by the courts. 

What if I think I have a claim?

It is worth noting that resorting to litigation is not always necessary. Many of these cases are successfully resolved at mediation or before trial. Where the estate is smaller, those involved need to take a particularly pragmatic view on the claim(s) as estates can be quickly eroded in legal fees.

If you think that you may have a claim, it would be worth speaking to a contentious probate specialist in the first instance to understand what your options are. For example, you may not be restricted to just a claim under the IPDFA '75. There may be additional claims open to you if you contributed to the purchase price of a house or carried out improvements or if promises were made to you regarding property that you relied up on to your detriment.

Takeaway Advice

Prevention is better than the cure. It is always best to have a conversation with your cohabitee/partner about what would happen to the other financially if one of you passes away.

If you make a will to benefit your cohabitee, it can be changed later if you break up.  And remember that any will made is automatically revoked upon marriage unless you have a clause in it saying otherwise. This means that you may need to make a further will if you marry.

Lorraine Jeffery is a Partner specialising in resolving disputes arising from wills, estate administrations, and trusts. If you have any queries relating to the above article please do not hesitate to contact her here.