Unmarried couples who live together, otherwise known as cohabitees, may be surprised to learn that there are currently no rights for them to inherit from their partner’s estate if their loved one passes away. Instead they will need to consider making a claim under the Inheritance Act 1975.

If an individual is not sufficiently provided for by the estate of a loved one, whether under their Will or the rules of intestacy, it is open to them to make a claim for financial provision from the estate under the Inheritance (Provision for Family and Dependants) Act 1975 (“the Inheritance Act”).

There are strict categories of eligible claimant under the Inheritance Act, and a cohabitee is one possible such claimant.

Cohabitation is on the Rise

Although in 2018 the most common family type in the UK were married and civil partner families (67.1%), cohabiting couple families were the second-largest family type at 3.4 million (17.9%). Further, the share of married couple families has declined from 69.1% while the share of cohabiting couple families has increased from 15.3% since 2008 according to the ONS report.

It is therefore often surprising for our clients that cohabitees still have no right to inherit from their partner’s estate under the Intestacy Rules (when their loved one dies without a Will or without leaving a valid Will). If an individual is propelled into this sad situation, they will need to consider bringing a claim under the Act 1975 in order to ensure provision is made for them from the estate.

Such claims are all the more likely when you consider the result of the YouGov survey conducted by Kings Court Trust in March 2018 which revealed that only 26% of adults with children aged 4 or under have a Will and only 30% of adults “living as married” have a Will.

Cohabitees – who qualifies to bring a claim?

Again, it may be surprising that not all cohabitees will qualify to bring an Inheritance Act claim. If they don’t qualify they would then be in a precarious position in terms of being able to insist on provision being made for them from their loved one’s estate.

The Inheritance Act is clear. For a cohabitee to be eligible to bring a claim they must for at least two years prior to the death have been living:-

  1. In the same household as the deceased; and
  2. As a married couple or civil partners.

Case law over the years has been reasonably flexible about the definition of “living in the same household” (for example including living part of the week in separate households) and “living as a married couple” (for example allowing non-sexual relationships to qualify). However, each case will be determined on its own facts and this means cohabitees have this additional hurdle of proving their eligibility to bring a claim on top of the reasonable financial provision test below.

Reasonable Provision & Additional Factors for Cohabitees

If the Court finds that a cohabitee is an eligible applicant then the next test for them to overcome is whether reasonable financial provision has been made for them from the estate and if not what reasonable financial provision would be. However, cohabitees are only entitled to the lower standard of provision from the estate (being that which is required for their maintenance only) rather than the higher standard which spouses and civil partners are entitled to (for a discussion of married and civil partner claims see here).

In determining what is reasonable financial provision the Court will consider a number of factors under section 3 of the Inheritance Act such as the cohabitee’s financial needs and resources, their medical needs and any obligation the deceased owed to make provision for them.

Additional factors which the Court will consider when deciding cohabitee claims are:-

  1. The age of the cohabitee;
  2. The length of the cohabitation; and
  3. The contribution the cohabitee made to the welfare of the family of the deceased, which includes contribution via looking after the home or caring for the family.

Instruct a Specialist

It will be seen from the above there are a lot of hurdles which must be overcome for a cohabitee to put forward a successful Inheritance Act claim and it is for this reason that we would always recommend to clients that they instruct specialists when pursuing such claims to ensure they maximise their chances of success.

Further, the problems posed by cohabitees dying without a Will reinforce the importance of clients executing a Will as soon as they start cohabiting to ensure their wishes are complied with upon their death.

Our specialist teams can not only help with preparing Wills but also Cohabitation Agreements which are becoming more and more common in these situations to protect various aspects of cohabitee finances, which don’t just cover scenarios on death but also on separation. You can read more about the merits of cohabitation agreements here.

We would therefore encourage cohabitees to call the office to discuss the various ways we can help you to protect your interests.