The number of families in the UK continues to grow, with cohabiting couple families growing the fastest according to the ONS. In 2017, of the 19 million UK families recorded, 3.3 million were cohabiting. It is perhaps therefore surprising that intestacy rules still fail to provide for cohabitees, regardless of the length of cohabitation.
If a person dies in England or Wales without a Will, the distribution of their estate depends on whether they had a spouse/civil partner or children and if not, which other family members survived them. The basic rules are:
- Had spouse/civil partner but no children: Spouse/civil partner gets everything
- Had spouse/civil partner and children: Spouse/civil partner gets everything up to £250,000, and all the personal possessions; then 50% of the remainder goes to the spouse/civil partner and 50% is divided between the Deceased’s children (and if any child has died, their share goes to the Decease child’s children)
- Had no spouse/civil partner but had children: The estate is divided equally between the children (and if any child has died, their share goes to the Deceased child’s children)
- Had no spouse/civil partner or children: The estate goes to the parents, if living.
- Had no spouse/civil partner or children and parents deceased: The estate goes to the brothers and sisters equally (and if any sibling has died, their share goes to the Deceased sibling’s children)
- The order of inheritance is then: half brothers/sisters, grandparents, aunts and uncles, half-aunts and half-uncles and finally the Crown.
It will be immediately obvious that cohabitees are not mentioned anywhere in the above list and this is because they have no entitlement. Even if a couple have been cohabiting for a substantial period of time, there is no automatic right for the survivor to inherit when the first dies.
The only recourse that a surviving cohabitee might have is to try to negotiate with those who benefited through intestacy and if unsuccessful, to bring a claim in the Courts. The provisions of the Inheritance (Provisions for Families and Dependents) Act 1975 allow those who have cohabited for two years or more (or alternatively, dependents) to bring a claim, but the outcome of such cases is by no means certain. It is therefore vital that cohabitees make a Will setting out what they would like to happen to their property on their deaths. A recent scenario reported to the Sunday Times highlights the challenges that can be faced where couples fail to take such a simple legal step.
The circumstances involved an elderly lady who had been cohabiting with her partner for 40 years, the last 6 of which were spent in Spain. The lady’s partner died without a Will and at the time of his death, their house was held in his sole name. She therefore found herself unable to obtain probate or sell the property and without the cash to obtain proper legal advice. A Spanish solicitor advising for the Newspaper suggested she apply for a Certificate of Last Will from the Central Registry in Madrid to establish for certain that her partner did not write a Will without her knowledge. Having taken this step, the only option open to her would be to hire an investigator to search for surviving relatives: and to persuade them to give her a share of the estate. However, with no cash and only her pension to live on, this would not be easy.
Had the family lived in England or Wales, tracing any relatives that stood to inherit would still have been a necessity. After this, mediation would likely have been the first step before bringing a claim before the Courts. However, all of the above can be avoided by simply making a Will and keeping it up to date.
To find out more about making a Will as a cohabitee, call us on Southport 01704 532890, Liverpool 0151 928 6544 or complete a Free Online Enquiry and we will be in touch soon.