Unmarried Couples Rights
Proposals to give unmarried partners the same rights as married couples have been included in a review of inheritance law.
Automatic inheritance would be passed down to couples who lived together more than five years, while living with someone for two years could entitle a partner to half of their companion's estate in the plans.
The Law Commission suggested the changes as part of plans to update inheritance law for "modern families". They are hoped to avoid the need for partners to take "emotionally and financially draining" after bereavement.
Current laws leave unmarried couples with no automatic rights to a share of a partner's estate. It is estimated that as many as 350,000 people die without making a will every year - some with vast fortunes.
The consultation paper, Intestacy And Family Provision Claims On Death, accepts that equating the 2.25 million "cohabiting" couples in England and Wales with those who are married or in civil partnerships is "controversial".
Currently, spouses are entitled to the first £250,000 and personal possessions but in cases where more is left, they may have to share with children, siblings or parents.
Copyright © Press Association 2009
Adam Draper, Associate Solicitor in Irwin Mitchell's specialist Will Trust & Estate Disputes team talks about the proposals to give unmarried couples the same inheritance rights as married couples.
The disparity on death between spouses and cohabitees often means that the surviving cohabitee (and potentially any children of the couple) can often be left in an extremely vulnerable position. There are a number of steps which can be taken by a cohabitee to protect the interests of their loved ones on death. The simplest way to ensure that your assets pass to your loved ones is to have a validly executed will. The basis of English law is that a person is free to leave their estate to whomever they wish after their death.
Failure to execute a valid Will will lead to your estate passing in accordance with the rules of intestacy, which may result in people who you did not wish to benefit, benefiting from your estate. Under the rules of intestacy, the surviving cohabitee would not receive anything from the estate and if there is no surviving spouse, the deceased’s children would benefit.
A surviving cohabitee who has not received reasonable financial provision from the estate (either under the Will or following complete exclusion on the Rules of Intestacy) may also have a claim under the Inheritance (Provision for Family and Dependants) Act 1975 ("the Act"). The law accepts that in certain circumstances a final will, or even the law itself, may not have properly provided for certain people. In circumstances in which a person has not received 'reasonable financial provision' the law can step in to change the distribution of the estate.
Adam Draper, Associate Solicitor in Irwin Mitchell’s specialist Will Trust & Estate Disputes team, says, "in order to succeed in a claim under the Act a cohabitee will need to show that he is an eligible claimant and that the estate does not make reasonable financial provision for them. The Court will take into account the financial resources of all parties and the needs, both now and in the future, and the obligations and the responsibilities the deceased had towards both the cohabitee and the existing beneficiaries."
If the estate passes under intestacy to a child of the couple, the child would be a defendant to any claim under the Act.
With more and more people choosing not to marry such claims are becoming more common. The Act provides a 6 month time limit in which to bring a claim, commencing on the date of the Grant of Probate/Administration. It is therefore important to take early specialist advice. It is often the case that an early settlement can be agreed between the respective parties.