Cohabitee’s rights on death

This article has been written by Georgia Wookey, Associate Solicitor from Wards Solicitors

The number of recent enquiries regarding contentious probate matters involving unmarried cohabiting couples has increased.

This is not surprising when according to the ONS “the number of cohabiting couple families continues to grow faster than married couples and lone parent families with an increase of 25.8% over the decade 2008 to 2018”

The myth of common law marriage…

Is sadly alive and well.

An unmarried cohabiting couple, no matter how long they have been together, does not accrue any legal rights as a result of that relationship. Many individuals who have not sought legal advice remain sadly unaware of this.

Cohabitation Rights Bill

We are still awaiting the outcome of the second reading of the Cohabitation Rights Bill in the House of Lords which, if eventually given Royal Assent, should “Provide certain protections for persons who live together or have lived together as a couple; to make provision about the property of deceased persons survived by a cohabitant; and for connected purposes” You can read the current version of the bill here .

Lack of Provision

The main issue surrounds the lack of provision made for cohabitees upon the death of an unmarried partner. Either the deceased has not left a Will, which means that their estate would pass under the Statutory Rules of Intestacy or there is a Will which has not been updated (perhaps following a divorce). Cohabitees do not automatically inherit under Statutory Rules of Intestacy.

Whilst a Will is automatically revoked upon marriage, this is not the case on divorce. It is therefore incredibly important for Wills to be updated at pertinent points in someone’s life and even more important that as professional advisers we give advice or signpost clients appropriately at the right time.

Financial Provision Claim

If a cohabitee has not been provided for on death by their unmarried partner, it may be open to them to make a claim under the Inheritance (Provision for Family and Dependants) Act 1975 (“the 1975 Act”). In order to be eligible to bring a claim under the 1975 Act the claimant must establish:-

1. That cohabitation was for two whole years immediately prior to death.
2. They lived in the same household at the time of death.
3. That they were living as if husband and wife or civil partner.

Whilst all these elements must be present, the Court will take into account the practicalities of a relationship and therefore living together for two years, can include time spent apart due to work or time spent in hospital or some other reason. Similar considerations will be made in relation to whether an unmarried couple were living together as husband and wife or civil partners. The approach to be taken was set out in Gully v Dix. This was a 1975 Act claim whereby one of the main issues was whether a relationship had truly ended or not as a result of the claimant having left the home for a period of three months. In that case the claimant had moved out because her partner was drinking excessively and she wished to add pressure to him to stop drinking by moving out. In this case on the evidence put before the court it was found that the relationship had not finished.

The considerations made are partly explained in the judgment as follows:-

“…the claimant may still have been living with the deceased in the same household as the deceased at the moment of his death even if they had been living separately at that moment in time.…The tie of that relationship may be made manifest by various elements, not simply their living under the same roof, but the public and private acknowledgment of their mutual society, and the mutual protection and support that binds them together.”

Other factors

Once eligibility has been established, the court will need to decide whether the cohabitee was reasonably provided for and if not then what reasonable financial provision would look like for their maintenance. To assess this, it would take into consideration all the elements outlined in section 3 of the 1975 Act which includes the claimant’s financial position, the size and nature of the estate and the financial position of any other beneficiary and / or claimant where relevant.

So what can be done to assist?

As advisers we have a number of touch points with clients whereby these issues can be discussed and addressed. Property Transactions, divorce and certain commercial transactions will all be key touch points for professionals to bring up the issues around the rights of unmarried couples. Updating Wills, entering into Declarations of Trust and /or Cohabitation Agreements are all ways to assist in best protecting our clients.