Rights of co-habitees currently fall short of those of married couples
Matthew
Evans
29 I 10 I 09
There are now
approximately 2.5 million couples who are not married or in a civil
partnership co-habiting in England and Wales and that figure is
likely to increase.
Co-habitees should be
aware that their legal position is dramatically different to
couples who are married or in civil partnerships.
A good example of this is
the law governing the estates of people who die without a will
(known as dying intestate). On February 1st 2009
changes to these rules came into force. The most notable change was
an increase in the sum that a spouse or civil partner would
automatically receive from such an intestate estate. The
changes did not govern circumstances where a person dies intestate
leaving a co-habitee.
As matters currently
stand a surviving co-habitee has no automatic right on an intestacy
to inherit any of their deceased’s partner’s estate (save for
jointly owned assets which pass automatically) and the estate will
pass either to any children of the deceased at 18 to parents or
possibly other remote family members.
That said, there is
pressure upon the government to ensure that the law properly
reflects modern living arrangements and, if necessary, is amended
to do so.
As such, the Law
Commission has been asked by the government to review the position
and one of their proposals is to bring the rights of some unmarried
couples on a par with those who are married or in a civil
partnership.
It is suggested that
couples who live together for at least five years would obtain the
same rights upon intestacy as a spouse or civil partner.
Those who have lived together between two and five years would
receive half of that amount. It is further suggested that
unmarried partners who have children with the deceased would
automatically acquire the same rights as a spouse or civil partner,
regardless of how long they had been together.
From a legal perspective,
the proposals are clearly an attempt to automatically create a
position that often arises as a result of litigation.
As matters currently
stand, a co-habitee of more than two years can bring a claim
against the estate of their late partner by virtue of the
Inheritance (Provision for Family and Dependants) Act 1975 for
“reasonable financial provision” if they feel that they
have not received the same. That can often lead to the
prospect of a parent having to instigate a claim against their own
children’s inheritance.
The value of any such
claim will depend entirely upon the circumstances of the case but
it is almost certain that legal professionals will need to be
involved. Given the inherently adversarial nature of our
legal system, there is the danger that even the most amicable of
cases will become protracted and upsetting for the parties
involved, not to mention, of course, expensive. It is also
worth noting that, if minors (children under the age of 18) are
involved, even if the parties have reached an agreement the Court
will need to approve any settlement.
In light of such
considerations the Commission’s recommendations would appear to
have some merits. That said, there are still potential issues
that will need to be addressed. In the context of Inheritance Act
claims the Court has had to consider what constitutes
“co-habitation” and when such periods begin and end. It is
easy to imagine similar Judicial interpretation being required,
should the Commission’s recommendations be adopted.
Perhaps the most salient
point to note is that dying intestate can create uncertainty for
those who are left behind. The easiest way to address that
uncertainty is the preparation of a valid Will.
It is estimated that
between 300,000 and 400,000 die every year without leaving a Will
and unless that figure dramatically decreases it would appear that
the Law Commission and the Courts will be kept busy for a while
yet.
For further information contact:
Matthew Evans
Associate,
E matthew.evans@hughjames.com
T 029 2022 4871
