Cohabitees and Death – Who Can Claim?

Ashley Wallace-Cook, Wills, Trusts and Probate Partner at WSP Solicitors
It may be a surprise to many that the often referred to status of ‘common law spouse’ does not exist in law. It is therefore important that people living together take steps to protect not only their partner’s position but also their own if something untoward should happen to the other. An example of protective steps could be to have a will prepared.

 

If you do not have a will then when one member of a cohabiting couple dies, it can come as an unpleasant surprise to the bereaved partner to discover that not all of their late partner’s estate will pass to them.

 

Where there are assets which are jointly held (for example in the case of ‘joint tenants’), these will pass by survivorship to the other partner. Property held jointly and joint bank accounts are normally held in this way too. If there is a life assurance policy or there are pension benefits payable to a nominated person, then the surviving partner will receive these if they are the named beneficiary.

 

However, once such assets have been dealt with and if there is no Will then the rules of intestacy apply. An intestate estate essentially passes to the relatives of the deceased. This will normally leave the deceased’s partner with nothing.

 

The law allows a claim for provision to be made from the estate of the deceased under the Inheritance (Provision for Family and Dependants) Act 1975) by dependants if they are persons for whom the intestate person might reasonably have been expected to make provision.

 

A surviving cohabitee can make a claim if the deceased died intestate or failed to provide for them in the will if:
1. they were maintained by the deceased in whole or in part immediately before the death of the deceased; or
2. for two years prior to the death of the deceased they lived in the same household as the deceased as if they were the husband, wife or civil partner of the deceased.

 

In such cases the court may be requested to make ‘reasonable provision’ for the applicant. There are a series of guidelines which have been set to ensure that the provision made is fair, which consider the size of the estate and the circumstances of those with an interest in it.

 

If you would like to discuss inheritance disputes or create a Will please call 01453 847200 and a member of our team will be happy to discuss your circumstances.

 

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