Written by Amaka Jackson, Managing Partner, Notary Public & Private Client Solicitor
The Government’s consultation, A Fairer End to Relationships, raises an important question: should someone who has shared their life with a partner for decades still be treated as a legal stranger when that partner dies?
Under the current law in England and Wales, the answer can be yes.
There is no recognised status of “common-law spouse”. An unmarried partner has no automatic right to inherit under the intestacy rules, regardless of whether the couple lived together for two years or 30 years.
As a solicitor, I regularly see how surprising, and deeply distressing, this can be for surviving partners.
When a lifetime together is not enough
Consider a couple who have been together for 30 years.
Say they never married or had children together but the deceased also retained relationships involving children from an earlier relationship.
Following his death, the surviving partner may find that the length of their relationship does not give her an automatic entitlement to his estate. If there is no will making adequate provision for her, she may have to bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975.
She must then provide evidence of the relationship, their household arrangements, her financial position, her housing needs and the obligations the deceased assumed towards her. Her needs must also be considered alongside those of the deceased’s children and other beneficiaries.
A relationship of 30 years would clearly be important evidence. However, it does not, by itself, guarantee an inheritance.
That is where the present law can appear disconnected from the reality of modern family life.
What could the new proposals change?
The Government is considering giving certain qualifying cohabitants an automatic right to inherit where their partner dies without a valid will.
A qualifying partner could potentially receive the same entitlement on intestacy as a spouse or civil partner and may also receive priority to administer the estate.
This would represent a major change.
Instead of beginning as an excluded partner who must establish a claim, the survivor could begin with a statutory entitlement.
In the example case involving a relationship of 30 years, that could fundamentally improve the survivor’s legal position as she may no longer have to rely entirely upon the court’s discretion to obtain reasonable provision from the estate.
The reform would not remove every dispute, particularly where the deceased had children or continuing responsibilities from a previous relationship. However, it would give the surviving cohabitant a much stronger starting point.
What is a 1975 Act claim, and would the reforms strengthen one?
A claim under the Inheritance (Provision for Family and Dependants) Act 1975 allows certain people, including qualifying unmarried partners, to apply to the court where a will or the intestacy rules have failed to make reasonable financial provision for them.
The proposed reforms would not significantly widen the awards available under the Act. Their main effect would be to give some cohabitants an automatic entitlement on intestacy, meaning that a claim might not be necessary at all.
The consultation also proposes removing the current two-year cohabitation requirement where the couple had a child together.
Unmarried partners would, however, still have narrower rights than spouses. A cohabitant’s award is generally limited to reasonable provision for their maintenance, whereas a spouse may bring a wider claim.
Amaka Jackson, our private client solicitor, advises surviving partners, executors and beneficiaries on claims under the 1975 Act, including cases involving long-term relationships, inadequate provision under a will, children from previous relationships, financial dependency and disputes concerning the family home.
Claims are normally expected to be issued within six months of the grant of representation, so early advice is important.
What if the deceased left a will?
The proposed reforms would principally apply where someone dies without a valid will.
They would not ordinarily override a will leaving the estate to other people. An unmarried partner who has been excluded from a will, or left with insufficient provision, may therefore still need to bring a claim under the 1975 Act.
The Act will remain important in cases involving competing family interests, financial dependency and disputes over the deceased’s home or estate.
Do Cohabitation Agreements still matter?
Yes.
The proposed reforms are not yet law and may change before any legislation is introduced.
A properly drafted Cohabitation Agreement can record how a couple owns their property, contributes towards mortgage payments and household expenses, and intends to manage their financial affairs.
A Cohabitation Agreement does not replace a will, but it can provide valuable evidence of the couple’s intentions and financial arrangements.
Unmarried couples should generally consider:
- a Cohabitation Agreement;
- properly drafted and regularly reviewed wills;
- a declaration of trust where property is jointly owned;
- updated pension and death-benefit nominations; and
- appropriate life assurance.
Our solicitor Emma Mapp helps couples put clear Cohabitation Agreements in place before difficulties arise.
The law may change, but couples should not wait
The consultation is an encouraging recognition that long-term cohabitants deserve greater protection.
However, until the law changes, an unmarried partner may still have no automatic entitlement, even after sharing their life with the deceased for 30 years.
Couples should not assume that the length of their relationship will protect them. Clear estate planning remains essential.
For advice on a Cohabitation Agreement or a potential claim against a deceased partner’s estate, contact Jackson Longe Solicitors on 0208 332 2060, email info@jacksonlonge.com, or complete our online enquiry form.
Early specialist advice can make a decisive difference.
This article is for general information only and does not constitute legal advice. The Government’s proposals remain under consultation and may not become law in their current form.
