Left out of your partner’s will? What can a cohabitee do?

There’s a commonly held belief that if you live with someone without being married or in a civil partnership, you have the same rights as if you were married. This belief in the existence of a ‘common law marriage’ is wrong. The reality is that a cohabitee has no equivalent status to a spouse of civil partner. This means that, if you are a cohabitee and your partner dies, your only protection is from your partner’s will. If your partner hasn’t made a will, or hasn’t updated his or her will to include you, you may have to bring a claim under the Inheritance Act 1975.

Cohabitees and the rules of intestacy

Cohabitees have no claim under the rules of intestacy – and as nearly 2/3 of the UK population don’t have a will, and cohabitation is the fastest growing family type in the UK, it’s quite likely that many cohabitees are at risk of being left with nothing as the result of the intestacy process. It can also be a problem if the person who has died had a will, but it was not updated to reflect a new relationship.

How can the Inheritance Act 1975 help?

The Inheritance (Provision for Family and Dependants) Act 1975 offers a mechanism for people who are not included under the rules of intestacy, if there is no will. It also allows claims from people who have been left out of a will completely, or who have been included in the will, but have not been left as much as they need.

Since 1995, opposite sex cohabitees have been able to bring a claim under the Inheritance Act 1975. Following the Civil Partnerships Act 2004, same sex cohabitees can also claim under the Inheritance Act 1975.

Qualifying as a cohabitee

To bring a claim as a cohabitee, you must be able to show that you lived ‘in the same household’ as the person who died, for the 2 years leading up to his or her death. You must have lived with them ‘as husband or wife’ (section 1A of the Inheritance Act 1975). Section 1B contains identical provisions for same sex couples, although they must have lived together ‘as civil partners’ rather than as husband or wife. It’s important the remember that the law uses the words ‘household’ rather than ‘house’. In the case of Kaur v Dhaliwal [2014] 1991 (Ch), the couple had lived together for 1 year and 49 weeks. When Mr Dhaliwal’s son moved into their flat, Miss Kaur moved out for 3 weeks, to give her partner the opportunity to improve his relationship with his son. When Mr Dhaliwal died, Miss Kaur had only lived in the same house for 1 year and 49 weeks. However, the High Court agreed with the County Court that although she hadn’t physically lived in the same house for those 3 weeks, she was still part of the ‘household’, so she could bring a claim under section 1A of the Inheritance Act.

Reasonable Financial Provision for maintenance

While spouses and civil partners can claim for “…such financial provision as it would be reasonable in all the circumstances of the case for a husband or wife to receive, whether or not that provision is required for his or her maintenance…” Again, an identical provision exists for civil partners. Cohabitees who can satisfy section 1A or 1B can make a claim for “…such financial provision as it would be reasonable in all the circumstances of the case for the applicant to receive for his maintenance.”

While a court looking at a claim from a spouse (or civil partner) can look at the situation in the same way as it might approach a division of assets in a divorce, for a cohabitee, it is less clear cut. What is reasonable provision for maintenance will depend on the individual circumstances of the case – someone living a more extravagant lifestyle may well be able to claim more than someone living a more frugal lifestyle. Equally, a cohabitee who is financially less dependant on his or her partner will need less than a dependant partner. While this might make sense from a purely practical perspective, it essentially ignores the emotional side of these kinds of case.

While there is still an inequality in treatment between spouses and civil partners on the one hand, and cohabitees on the other, in respect of what the Inheritance Act 1975 allows them to claim, it’s important to remember that the Act is there to assist cohabitees who find themselves left out of a will, or ignored under intestacy when their partner dies.

We are specialist will dispute solicitors, and will be happy to give you advice about your position and your ability to claim under the Act. If you’d like to find out more, get in touch.