When one member of a cohabiting couple dies, it may come as an unpleasant revelation to the surviving partner that, in the absence of a will, not all of the deceased partner’s estate will pass to them. When this occurs, many people realise that there is no such thing as a “common law” spouse under the law; therefore, it is crucial that people living together consider safeguarding their position through the means currently available.
Where assets are held jointly (as “joint tenants” in legal parlance), they will transfer to the surviving partner by survivorship. Typically, this is how property held jointly and joint bank accounts are held. In addition, if a life insurance policy or pension benefits are payable to a designated beneficiary, the surviving spouse will receive these benefits if they are the designated beneficiary.
However, once these assets have been disposed of, the rules of intestacy apply if there is no will. The heirs of an intestate estate are determined by a formula that varies in complexity based on the size of the estate and the deceased’s kin. Typically, this leaves the deceased’s companion with nothing.
Under the Inheritance (Provision for Family and Dependents) Act of 1975, however, dependents may make a claim for provision from the estate of the deceased if they are persons for whom the intestate person could have been reasonably anticipated to make provision.
A surviving cohabitee can make a claim if the deceased died intestate or neglected to provide for them in the will if:
- they were maintained by the deceased in whole or in part immediately before the death of the deceased; or
- 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 these instances, the court may be asked to make “reasonable provisions” for the applicant. A series of guidelines have been established to ensure that the provision made is equitable, taking into account the extent of the estate and the circumstances of those who have an interest in it.
The court has extensive authority to divide the estate, including the ability to order periodic or lump-sum payments or the transfer of specific property to the claimant. It should be noted, however, that transfers on death to a cohabitee do not qualify for the inheritance ‘tax spouse’ exemption, which pertains to transfers to a spouse or civil partner.
In a 2015 case involving the death of a man who had resided with his partner for less than two years prior to his death, it was determined that she could not file a claim as a result of his death, but their child (born after his father’s death) could. In another instance, the ex-wife of a man born in the United Kingdom was denied the right to file a claim after the bank determined that he had adopted Gambia as his foreign domicile of choice.
Recently, the courts have ruled in favour of a long-term cohabitant’s entitlement to a dependent’s pension from an occupational pension scheme.
Following the failure of an earlier Cohabitation Rights Bill to advance through Parliament, a new bill was introduced that also failed to become law.
