Cohabitation reform: bringing inheritance law closer to modern family life

Unlike spouses and civil partners, cohabiting partners currently have no automatic entitlement to a partner’s estate, even if they have children. If their partner dies without making a will, they may have to bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975 (‘1975 Act’) for reasonable financial provision from the estate, or try to establish a property interest under trust law. Those routes can be expensive, slow and emotionally draining at precisely the point when a bereaved partner may be least able to cope with litigation. 

The Ministry of Justice has recently asked whether the law in this area should change, in its consultation paper entitled ‘A Fairer End to Relationships.’  In broad terms, it considers whether certain “qualifying cohabitants” should receive stronger rights when their partner dies, particularly where the deceased did not leave a will. The proposals include giving qualifying cohabitants the same intestacy rights as spouses and civil partners, giving them the same priority to apply for a grant of administration, and extending eligibility to bring 1975 Act claims where cohabitants have shared children. 

Our view is that reform is needed. The current law can leave surviving partners financially exposed, even after a long and committed relationship. It can also force people into contentious probate proceedings simply to obtain reasonable financial provision. That is not only costly, but can deepen family conflict and delay the administration of an estate. A clearer statutory framework would improve certainty, reduce unnecessary litigation, and better reflect the way many families now live. 

However, reform must be handled carefully. Giving cohabitants rights equivalent to spouses or civil partners is a significant step. Marriage and civil partnership are formal legal statuses that can usually be proved by documents. Cohabitation is different. Whether a couple lived together in a relationship analogous to marriage or civil partnership may be fact-sensitive and, in some cases, disputed. That matters because contested status could create disputes at the very beginning of the estate administration process, including over who may apply for a grant of administration, or even over funeral or burial arrangements. 

For that reason, we emphasise that any definition of a qualifying cohabitant must be clear, objective and evidentially robust. The aim should be to recognise genuine, committed relationships while avoiding a system that is so flexible that it invites litigation. Relevant factors may include the length of the relationship, financial interdependence, shared children, and objective indicators of commitment, such as joint property ownership or engagement. 

There are, inevitably, difficult balances to strike. Estates may involve spouses, former spouses, adult children, minor children, dependants, and cohabiting partners – all with competing claims to an estate. Reform may increase the number of claims, particularly in blended family situations, but that is not a reason to avoid reform. Rather, it underlines the need for clear rules, public education and, above all, encouragement to make a will. Cohabitation reform should not replace careful estate planning, but it may provide a fairer safety net when planning has not happened.