Intestacy Rules – Cohabiting Couples

When it comes to estate planning on the death of an individual, the default legal positions for married and unmarried couples who have not made wills are very different. There is a common misconception that long term partners are automatically entitled to a share of their partner’s estate if they die without a will. However this is not the case.

When a person dies without a valid will they are said to have died “intestate” and their assets are divided in accordance with the intestacy rules.

The rules state that married couples and civil partners who die without having children will receive the entire estate of their deceased spouse or civil partner.

If they die leaving children (and their estate is more than £250,000 in value), their spouse will automatically inherit the first £250,000 and any personal chattels held. The remainder of the estate will be divided in half; between the said spouse and any surviving children equally.

It is important to note at this stage that there are still no rights for unmarried or unregistered couples under the Intestacy Rules, however long they have been in a relationship.

An unmarried partner can make a claim for a financial provision from the estate of a deceased partner under the Inheritance (Provision for Family and Dependants) Act 1975 provided they have been cohabiting for a period of two years immediately prior to the death. This issue was highlighted in the case of Negus v Bahouse.

The case involved a claim by the cohabiting partner of a fairly wealthy deceased businessman, who successfully claimed that she had not been adequately provided for by his will. The deceased’s son, on application to appeal, argued that there should be a difference in treatment between cohabitants and spouses in these circumstances. The court, however, held that the decision to award a cohabitant monies/assets from their late partner’s estate, will depend on the what is appropriate to the particular case “…and that means looking at the style of life the Claimant was accustomed to live with the deceased during his lifetime.” The surviving spouse received from the estate in excess of £700,000.

The rules of intestacy can be harsh, as they often do not allow for modern family relationships. It was reported that there were 18.7million families in the United Kingdom, 3.2 million of which were cohabiting.

The unfairness of it all has not gone unnoticed with endless commentators discussing the issue. Fundamentally marriage is not for everyone, but where couples do decided to cohabit long term, an awareness of these issues will certainly help. It is important that all couples have wills in place to ensure their estate passes in accordance with their wishes.

A surviving partner of an unmarried person who dies intestate will need to seek provision under the 1975 Act. Such Inheritance Act claims must be commenced at the earliest opportunity after the death as there is a six month time limit from the Grant of Representation.

Please contact Josie Birnie or Sean Harrison if you would like more information about the issues raised in this article or any aspect of wills and probate.