Call for unmarried couples to have the same inheritance rights as those who are married.
The Law Commission has recommended that, in certain circumstances, unmarried couples should have the same inheritance rights as spouses when a partner dies without making a will. The ‘common law wife’ is a widespread misconception; this concept has not existed since 1753 and, currently, unmarried couples do not have the same legal rights as spouses.
Cohabitation is widespread and increasing. According to the Office for National Statistics, the number of cohabiting couples in and will increase from 2.3 million in 2008 to 3.8 million in 2033. Despite this, the Law Commission has suggested that cohabitants are among the people least likely to have a will, meaning that surviving cohabitants are often left with nothing.
Under the current intestacy rules (which apply when someone dies without a will), if the deceased has children their spouse inherits all of the personal property, the first £250,000 and a life interest in half of what remains - the children then receive equal shares of the residual half. If the deceased has no children then the spouse receives the first £450,000 and half of the residue, the remaining half passing to other family members.
By contrast, unmarried partners do not have an automatic entitlement to inheritance which means that in the absence of a will, they can be left with nothing. To inherit they can apply to the Court for maintenance from their partner’s Estate. Such claims can be lengthy, costly and are often disputed by the other beneficiaries of the deceased’s Estate. This increases the emotional strain on families at an already difficult time.
To address this issue the Law Commission has recommended that when a person dies without a will, is not married to anybody else at the time of death, and has been cohabiting for five years prior to death, the surviving partner should have the same automatic inheritance rights as surviving spouses currently have.
They have also recommended that if a person has been cohabiting for two years prior to death and has a child with the surviving partner then the surviving partner should have the same automatic inheritance rights that surviving spouses currently have.
The above would go a long way in recognising that increasing numbers of people are choosing cohabitation rather than marriage. It remains to be seen whether the recommendations will be implemented but, in the meantime, it is extremely important that cohabitants make wills to record their wishes. This is currently the only way of ensuring that assets pass to the intended recipients subject to any claims which may later be made on the deceased’s estate.
For more information on any aspect of the above, please contact the following people:
- Peter Lowe on claiming family provision; and
- Martin Oliver on claims under the Inheritance (Provision for Family and Dependants) Act 1975.
