What is the legal position of a cohabitee when their partner dies? Experienced inheritance solicitor Lee Dawkins looks at cohabitee Inheritance Act claims.
Challenging the validity of a Will or making an Inheritance Act claim
It is a popular misconception that the phrase “common-law husband” or “common-law wife” has a legal basis, granting legal rights to cohabiting 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.
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 a cohabitee Inheritance Act claim, you need to be able to prove that:-
- You are an eligible cohabitee; and
- You would otherwise receive insufficient financial provision from the estate.
Who is eligible to make a cohabitee Inheritance Act claim?
When the government changed the Inheritance Act to allow cohabitees to bring a claim in 1995, they specified that for a cohabitee to be eligible:
- Your partner needs to have died after 1 January 1996; and
- You and your partner must have lived in the same household as husband and wife; and
- You must have cohabited for the whole period of two years ending immediately before the date of death.
Since these changes to the Inheritance Act came into force, the courts have been required to clarify what is meant by the terms “household”, “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; and
- 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, cohabitee Inheritance Act claims can also be made on the basis that the cohabitee is a ‘financial dependant’ of the deceased. A claim can be made under Section 1(1)(e) of the Inheritance Act, so that if they are not eligible as a cohabitee, they can still bring a claim as a financial dependant.
A ‘financial dependant’ is defined by the Inheritance 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. In simple English, this means you must have received more benefit from them than you gave to them in return, eg by caring for them.
What is adequate financial provision?
If you are eligible to bring a cohabitee Inheritance Act claim (either as a cohabitee or as a financial dependant) then the question of adequate financial provision will need to be considered.
If an agreement cannot be reached out of court, then a judge will consider what adequate financial provision is in your case, considering a number of factors, including the value of the estate, and your own financial needs and resources – as compared to the financial needs and resources of the beneficiaries. The court will also consider any disability that you or the beneficiaries have and any promises the deceased made to you that you would benefit under their estate.
The court has the power to adjust the distribution of the estate to make provision for you. The level of provision will be calculated according to what is necessary for your maintenance.
How we can help with cohabitee Inheritance Act claims
The definition of ‘cohabitee’ and ‘financial dependant’ can therefore be broad-ranging, and the assessment of what constitutes adequate financial provision can be complex. So, if you believe you may have a case and require guidance on cohabitee Inheritance Act claims, then contact us for a free assessment of your case by one of our specialist lawyers. Call 0333 888 0409 or send us an email at info@contesting-wills.co.uk
We deal with cohabitee Inheritance Act claims on a No Win, No Fee basis; just ask for details.
