Inheritance Rights Of Cohabiting Couples – What Will A Court Consider?

A second marriage or cohabitation late in life is fast becoming a common scenario in the modern family. Aside from the politics this can bring to a family, if your partner has children who expect to inherit from him/her, a whole new dispute can arise after he/she has passed away. If your late partner has made a Will, it might provide for you only a little, or not at all, or your partner might not even have made one.

Either way, this can create huge problems for you if you have nowhere else to live, or if you were dependent on your late partner. If the children have not taken to you and they want to get on with administering the estate, things can quickly deteriorate. Legally, you have far less inheritance rights as a cohabiting couple than you do as a married couple, and although sometimes your cohabitee will include you in their Will, if they made their Will years ago or after a divorce, this may not be the case.

If you are in this situation, but have lived together for at least two years continuously, or if you can prove that you were being maintained by your late partner, you can bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975 (“the Act”).

Under the Act, the Court has the power to award you a sum of money or in rarer cases, property. The Act enables you to claim “such sum as would be reasonable for your maintenance”. This is very fact-sensitive. A number of factors will be looked at.

Inheritance rights of cohabiting couples – factors that a Court will take into consideration

Your personal finances are highly relevant and will need to be disclosed – if you are fairly comfortable already then you may not need much in the way of maintenance. However, if you have no assets or only limited income of your own this could increase your chances.

The Court will consider not only your own needs but the needs of other beneficiaries of the Will – if one or more of the children is disabled or unemployed, for example, this could affect your claim. You can however legitimately argue that if the children have greater earning capacity due to their age and/or employment, then their needs are not as great.

The size of the estate is very important as well. A large estate should provide more than enough to go round, but if we are talking about a modest sized property and a minimal cash sum, a Judge is going to be reluctant to sever a large part of it. Sometimes money can pass outside the estate. It has become quite common for people to gift sums to their children during their lifetime – e.g. buying them a house or a car. Sometimes the children will receive your partner’s pension or insurance money, which of course may leave them in a much better position financially.

It’s not all about money, either. Your conduct and that of the children can be very relevant. Although estrangement is no barrier to a legacy, a child’s absence from your partner’s life can undermine their position. Some credit can be given to claimants who have helped care for their late partner. Separately from the Act, it is also possible to receive money from an estate if you can prove that your partner promised you a legacy and that you made some sacrifices based on those promises (e.g. giving up your home). This is known as estoppel and this year in particular a number of successful claims have been made on this basis.