Inheritance act claims for cohabitees

As this is Cohabitation Awareness Week, our Rob Synnott has been considering the rights of cohabitees if their partner dies.

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 starting point is the intestacy rules which are beyond the scope of this article. 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.

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 2 year period ending immediately before the date of the deceased’s death. This can cause complications where, for example, parties maintain 2 separate households or where a longer period of cohabitation than 2 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.

In addition, in order to make a claim, the deceased must have been domiciled in England and Wales. In many cases this may be clear on the facts but in this ever shrinking world this can present difficulties where the deceased is resident abroad or where their residence in England and Wales is, for whatever reason, regarded as temporary and not sufficiently permanent to constitute a domicile 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.

The complex nature of these claims is such that potential Claimants should get legal advice on their particular circumstances. If you would like to discuss making a claim under the Inheritance (Provision for Family and Dependants) Act 1975 or making a Will to avoid the need for your partner to make such a claim in the future, please do not hesitate to contact us and we will be happy to advise you further.

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