What inheritance rights do cohabitants have on death?

19 Jun 2012

It is a commonly held misconception that common-law husbands and common-law wives, often collectively known as “cohabitants“, have rights of inheritance on the death of their partner.

The result of this misconception is that where the deceased cohabitant has made no Will, the surviving cohabitant has no automatic right to receive any part of his or her partner’s estate.  The results can often be quite catastrophic, since the effect of the Intestacy Rules, which apply if there is no Will, do not currently make provision  for a surviving cohabitant.

Litigation is often the only remedy by way of a claim under the Inheritance (Provision for Family Independents) Act 1975 as amended by the Law Reform (Succession) Act 1995, which can be a traumatic and expensive experience for the Claimant, and carries no guarantee of success.

The Law Commission has, over the past few years, looked into changing the current situation and published a draft Bill in December 2011, which would provide new rights for certain cohabitants on intestacy and extend their rights to make claims under the 1975 Act.  Although this Bill has not got official backing from the government, the Inheritance (Cohabitants) Bill has been introduced as a Private Members’ Bill and received its first reading on 11 January 2012.  The Bill is almost identical to the Law Commission’s draft Bill, but is unlikely to become law as Private Members’ Bills rarely do.  It seems likely that the main aim of this Private Members’ Bill is therefore to create an opportunity for debate, which may in due course encourage the government to respond to the Law Commission’s formal recommendations on this subject.

Watch this space!

To avoid being subject to the intestacy rules you should make a Will expressing your wishes as to what happens to your estate upon your death.

If you have any questions regarding the above or would like to make or amend an existing will you can:

Please visit our Wills and Probate pages for more information on the Wills, Probate and Disputed Estates services that we offer.

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