What inheritance rights do unmarried couples have?

Unmarried couples who live together have no automatic rights to inherit from their partner’s estate if their partner passes away without a Will. Instead they will need to consider making a claim under the Inheritance Act 1975.

The 1975 Act sets out that 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”).

It should be noted there are strict categories of eligible claimants under the 1975 Act, and a cohabitee is one possible such claimant.

Cohabitees – who qualifies to bring a claim?

Again, it may be surprising that not all cohabitees will qualify to bring an Inheritance Act claim as the 1975 Act is clear that for a cohabitee to be eligible to bring a claim they must for at least a whole two years prior to the death have been living in the same household as the deceased in a relationship akin to being husband and wife. 

Case law over the years has been flexible about the definition of “living in the same household” (for example living part of the week in separate households) and “living as a married couple” (as non-sexual relationships can qualify). 

However, each case will be determined on its own facts and this means cohabitees have this additional hurdle of proving eligibility to bring a claim on top of the reasonable financial provision test.

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.

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.

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

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