If a cohabiting (unmarried) partner dies either without a will, or a will that does not provide for their surviving partner, the legal position is that they will not inherit from their partner’s estate.
This often comes as a surprise to many people, who do not realise the implications of not being married or in a civil partnership, but cohabiting with another person.
However, the Inheritance (Provision for Family and Dependants) Act 1975 (“the Inheritance Act”) provides the surviving cohabiting partner with the ability to make a claim for reasonable financial provision from their partner’s estate, if they have not received such provision. However, there is more to raising a successful claim then just evidencing a lack of financial provision.
Requirements
For a claim by a cohabiting partner to be successful, they must prove that they lived with the deceased for a period of at least 2 years leading up to the deceased’s death. They must also prove that they lived together as if they were a married couple.
2 year rule
The 2 year period must be ‘unbroken’ up until the deceased’s death. However, it is not considered to be ‘broken’ by temporary separations such as the deceased being in hospital or hospice prior to their death, or due to the requirements of a job. The case law in this area is complex, so taking advice from a solicitor is important.
Living together ‘as a married couple’
Regardless of whether the couple were of the opposite sex or same sex, it needs to be demonstrated that they lived together as if they were married (or in a civil partnership). To evidence this, there needs to be a commitment of permanence in the relationship. Key facts that the Court will take into account include:
- The shared house being used as the postal address, as opposed to a previous or alternative address. However, owning another property is not fatal to a claimant’s claim.
- Public demonstrations of the relationship to the ‘outside world’, so the relationship was not secret and was known to the ‘public’.
- The fusion of the couples’ finances or agreements as to funding the relationship, such as property outgoings, bills, groceries, and holidays.
- Proposing a marriage (or civil partnership) is not always a significant factor, even if the proposal is rejected.
- It is not a bar to an claimant if they and the deceased were living on ‘bad terms’.
What the Court can order a successful claimant
If a successful claim is brought under the Inheritance Act, the Court will then need to consider what reasonable financial provision for the cohabiting partner would be. For claimants of this nature, reasonable financial provision is set at the claimant’s maintenance.
The Court’s view on this in recent case law is that the level of maintenance should be viewed in the context of the claimant’s lifestyle they enjoyed during the course of the relationship.
It is also important to note that the Court will also have to give consideration to the other factors of section 3 of the Inheritance Act when assessing a claim. This includes the needs of the beneficiaries of the estate, the needs of any other potential applicants under the inheritance Act, as well as the size and nature of the deceased’s estate.
What the Court can order
If a claim is successful, some examples of the orders the Court can make in these circumstances include a payment of a specified amount to be paid to the claimant from the deceased’s estate, or the transfer of the deceased’s property to the claimant outright, or a right to occupy the deceased’s property. The Court’s powers are broad, meaning they can also consider alternatives as appropriate.
How can we help?
Claims pursuant to the Inheritance Act are complex. It is therefore always best to seek legal advice before even considering making a claim.
Our specialist Wills, Trust, and Estate Disputes team at Sintons regularly advise and assist clients with Inheritance Act claims, whether bringing or defending claims. If you need advice in relation to an Inheritance Act claim, or any other contentious probate matter, please contact us for specialist advice. Our team is happy to discuss any concerns you may have. You will find our contact details on our website.
