Earlier this month the Law Commission made recommendations as to changes to the rules as to what happens to a persons estate should they die without making a will and in particular as to the rights of cohabitees and children from that relationship.
Over 2/3rds of people do not have a Will and of those that do, part or all their Will may be invalid. It is for this reason that the rules of intestacy are so very important.
Their report states that over 2.3 million people in the UK are cohabiting and the figure is set to rise. Worryingly, a great number of such couples do not realise that they will not automatically inherit, still believing in the myth of "common law" husband and wife.
The Law Commission has set to define cohabitees as couples in an intimate relationship and would look to exclude relatives living together or other "home sharers".
The major proposals made would allow cohabitees to automatically inherit (quite how much would depend on other factors) where the survivor has lived with the deceased for five years as at the time of the deceased's death if the couple have no children or, two years, if there are children. This provision would not apply if the deceased was still married or in a civil partnership with someone else at the time of their death.
The report also recommends that children adopted after the death of a parent should not then lose entitlement to their parent's estate. Also, whereas before a claim could only be made by a child who had been treated as a child of the family by the deceased within their marriage or civil partnership, this should no longer be limited and the whole context of the relationship should be considered.
All of this begs the question as to what is cohabitation? Whilst many consider that this should be obvious, there is no clear definition. By its' nature cohabitation is an informal arrangement.
- When does dating and staying over a few nights in the week turn into living together?
- Will the period of cohabitation have to start all over again if the parties separate but then reconcile?
- What constitutes treating a child as a child of the family, is this a child who comes to visit at weekends or spend half the week with one parent and half with the other?
These remain only proposals by the Law Commission, but the surest way to provide for those whom you love after your death (or indeed to actively exclude a person from inheriting) will be to make a Will and entering into a Cohabitation agreement if you are not married.
Until any such legislation is passed in the future, an individual, not married to their partner, may still be eligible to claim under the Inheritance (Provision for Family and Dependants) Act 1975. The Act, may allow an individual to claim against the deceased's estate for financial provision, on the ground that the deceased person's Will or indeed the provision under intestacy, or the combination of the two, does not make reasonable financial provision for the individual in question. There are specific criteria to be met in order to make a claim and you would need to consult a Solicitor if you felt that you may be eligible.
For more information please contact Louise Rudkin on 0114 266 6660 or email [email protected].
