The government’s recent consultation, ‘A fairer end to relationships,’ proposes changing inheritance rules to make provision for unmarried couples in the event that one of them dies.
At present, if someone fails to make a Will, a cohabiting partner has no automatic right to inherit anything. This means they may have to move out of shared property and they could be in financial difficulties at what is likely to already be a very difficult time.
If they need financial support, they would need to make a legal claim against the deceased’s estate, which can be stressful and cause difficulties in relationships.
Government proposals
The government sought views on ways to modernise the intestacy rules, or laws setting out who inherits if there is no Will, with a view to providing for cohabiting partners.
It broadly feels that qualifying cohabitants should inherit under intestacy rules in the same way as a spouse or civil partner does, both in terms of the amount they inherit and their position in order of entitlement, which for a spouse or civil partner is a position of priority above all other relatives.
It acknowledges that this could cause difficulties where an individual had children from previous relationships or other relatives who would be disadvantaged by any change in the law.
For this reason, it is assessing whether a more limited or partial entitlement would be preferable. However, the Law Commission has already stated that a partial model would be hard to design and even harder to implement, with a risk of disputes and litigation.
The government is therefore leaning towards a clear and simple model which would provide qualifying cohabitants the same intestacy rights as spouses or civil partners.
What are the current rules on intestacy?
The rules of intestacy set out who will inherit an estate, in order of preference, in the event that no valid Will is left.
If the deceased left a spouse but no children, then the spouse inherits everything.
If the deceased left a spouse and children, then the spouse will inherit all of the deceased’s personal possessions plus the first £322,000 of the net estate. The remainder of the estate is divided in half and the spouse will receive one half. The children will share the other half equally.
A civil partner has the same entitlement as a spouse.
If the deceased did not leave a spouse, civil partner or children, there is a list of other relatives entitled to inherit, in order of preference, starting with parents, then whole blood siblings.
Criticisms of the new proposals
Crossbench peer, Baroness Ruth Deech, has warned the Justice Secretary Alex Norris that implementing the new proposals would amount to a ‘profound constitutional change.’
While people enter into marriage and civil partnerships with some understanding of the legal implications, many would be unaware of automatic obligations that could arise after cohabiting for a qualifying period.
Although it is proposed that couples be able to opt out of the legal obligations, there is a risk that many would simply not know about them, and that their estate would pass to a cohabiting partner instead of another family member without them taking any action.
Baroness Deed suggested that a better option would be to introduce an opt-in system, rather than the proposed opt-out structure.
Avoiding complications as a cohabitee
The best way to prepare for any eventuality and ensure that your estate is passed on in the way that you want is to put a valid Will in place. This will protect your loved ones and avoid difficult situations, such as family members having to ask a cohabiting partner to leave a shared property or hand over personal possessions.
You can also tailor your Will to deal with more complex family structures, such as protecting your estate for children from a previous relationship. For example, a cohabiting partner could be left a life interest in a shared property, but once they no longer require it, then it could pass to the deceased’s children.
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