Cohabitee Crisis, 1975 Act

It is often thought that cohabitants, simply by the nature of their relationship, have a right to claim against the estate of their partner in the event that their partner dies, even if their partner has not made a will.

The traditional position was that cohabitees were, on the face of it, not entitled to claim against the estate of their deceased partner on the basis of their cohabitation, no matter how long that cohabitation had lasted.

Claims against an estate

Since 1996, though, cohabitees have been entitled to make a claim against the estate of their deceased partner under section 1 of the Inheritance (Provision for Family and Dependents) Act 1975. Any such claim needs to be made within 6 months of the date of the issue of the grant of representation.

The Act requires that the surviving partner must have been living in the same household as their partner ‘as husband and wife’ for the whole of the two year period ending immediately before the date of the deceased’s death. This can cause complications where, for example, parties maintain two separate households or where a longer period of cohabitation than two years has taken place but has ended prior to the date of the deceased’s death. The court has shown flexibility on such cases in the past but all cases are fact sensitive so a successful claim in such circumstances cannot be guaranteed.

Providing provision

In addition, in order to make a claim, the deceased must have been domiciled in England and Wales. If a claim is successful the Court will then determine whether a reasonable financial provision has been made to the Claimant. If not, it has wide powers to make orders against the estate of the deceased, to include lump sum and periodical payments or even orders in respect of the transfer of specific property.

Tom and Emma

We acted for a client who we will refer to by the fictitious name of “Emma” in relation to her late partner’s estate, “Tom”. Tom and Emma had been living together in a property Tom owned in his sole name for ten years. Emma had a child from a previous relationship named “Darcy” who was eleven years old when Tom suddenly passed away.

Throughout the relationship Emma had stayed at home to look after Darcy, who was treated by Tom as his own child. Tom was a successful professional and the sole bread winner in the relationship. He paid the mortgage and all outgoings on the property as well as all living costs for Emma and Darcy. When she met Tom, Emma had her own hairdressing business but let this go as Tom assured her there was no need for her to work. Tom and Emma enjoyed a high standard of living including luxury cars and holidays and Darcy attended public school. The estate was worth approximately £1.2 million – £850,000 property and the rest was liquid cash and investments.

Tom died without a will and under the intestacy rules, his mother stood to inherit his estate. Shortly after Tom’s funeral, Emma received a legal letter advising her the property was to be sold and that Tom’s mother wanted her to leave and confirming she was “entitled to nothing”.

Emma clearly was stricken at this letter as her assumption was that she would be looked after when Tom passed away – she did not know there was no will in place and assumed she would be treated as a “common law wife”. This is not the case in this type of situation.

Emma had no savings or assets in her sole name and did not own a property of her own. If she was to leave the property, she would effectively be homeless. Emma was advised to make a claim under the Inheritance Act for “reasonable financial provision”.

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Emma was awarded

Lump sum to purchase a new property (one more affordable to keep than the one she shared with Tom)
Lump sum to supplement her income
Lump sum to cover the vicissitudes of live ie unexpected bills etc
Lump sum to allow her to pay to retrain as a hairdresser and establish herself in business again

Darcy was awarded

Lump sum to allow her to complete her education in public school
Lump sum to cover university expenses

In all, Emma and Darcy were awarded just over half of the estate, amounting to £690,000.00. This was done through mediation and Court proceedings were only required to approve Darcy’s settlement sum. They were able to prove that reasonable financial provision had not been made for them under the intestacy that arose and this was rectified by the settlement achieved.

Cohabitee Crisis