Co-habitee Inheritance Act Claims

What is the legal position of a co-habitee when their partner dies?

It is a popular misconception that the phrase “common law husband” or “common law wife” has a legal basis, granting legal rights to co-habiting couples who have never married – but this is not true. In fact cohabitees often find themselves in a very vulnerable legal and financial position when their partner dies without making express provision for them in their Will.

So what can be done if you find yourself in this position - unable to benefit from your partner’s estate either because you were not included in their Will or because they have died intestate ie without making a Will?

Firstly, you should consider whether you are able to bring a claim challenging the validity of your partner’s Will. To succeed you need to be able to prove that they were unduly influenced, lacked testamentary capacity or did not know and approve the contents of the Will. However, in order to be able to bring such a claim you need to be a “disappointed beneficiary” which means you need to benefit under a previous will as co-habitees do not benefit under intestacy rules.

Secondly, (and more commonly) you can consider a claim under section 1(1)(ba) of the Inheritance (Provision for Family and Dependants) Act 1975. In order to succeed with an Inheritance Act claim you need to be able to prove the following:-

  1. You are an eligible cohabitee; and

  2. That it is unreasonable for you to receive what you have (or have not) from the estate.

Who is an eligible co-habitee under the 1975 Act?

When the government changed the 1975 Act to allow cohabitees to bring a claim in 1995, they sought to ensure that cohabitees were clearly defined. Therefore in order to be eligible:-

  1. Your partner needs to have died after 1 January 1996; and

  2. You and your partner must have lived in the same household as husband and wife; and

  3. You must have cohabited for the whole period of two years ending immediately before the date of death.

Since the changes to the 1975 Act came in however, the courts have been required to clarify what is meant by “household”, “as well as “husband and wife” and the “whole period of two years immediately prior to the death”. This clarification has helped cohabitees who wish to bring an Inheritance Act claim as the definition has been found to include:-

  • Parties who lived together but did not have a sexual relationship

  • Parties who were not living in the same ‘house’ but who could be considered to be living in the same ‘household’ if the evidence shows the parties considered the relationship to be continuing.

Furthermore, co-habitees can, and will often claim, in the alternative as a financial dependant under section 1(1)(e) of the 1975 Act, so that if they are not found to be eligible as a co-habitee they will seek to prove they are eligible to bring the claim as a financial dependant.

A financial dependant is defined by the 1975 Act as a person who was, immediately before the date of death, treated as being maintained by the deceased either wholly or partly. Maintenance is then defined as the deceased making a substantial contribution in money or money’s worth, otherwise than for full valuable consideration, towards your reasonable needs. This means you must have received more benefit from them than you gave to them in return- e.g. by way of caring for them.

Is it unreasonable for you to receive the provision you have?

If you are found to be eligible to bring an Inheritance Act claim either as a co-habitee or a financial dependant then the court will need to decide whether it is unreasonable for you to receive what you have (or have not) from the estate.

The court will make this decision having weighed in the balance a number of factors, including your financial needs and resources as compared to the financial needs and resources of the beneficiaries. The court will also consider any disabilities of you or the beneficiaries and any promises the deceased made to you that you would benefit under their estate.

If the court finds that the provision is unreasonable and insufficient then it has the power to adjust distribution of the estate to make provision for you. The level of provision will be calculated accordingly to what is necessary for your maintenance.

The definition of co-habitee (and financial dependant) can therefore be broad-ranging. So, if you believe you may have a claim then contact us for a free assessment of your case by one of our specialist lawyers. You can also find more information about Inheritance Act Claims here