Death and the cohabitee

In January 2015, the Office for National Statistics reported that cohabiting couple families grew by 29.7 per cent between 2004 and 2014, making this the fastest growing type of family in the UK. It is important for those in cohabiting relationships to understand what their position would be if their partner died.

Of course, people often make provision for their partners under their Wills. However, sometimes a cohabitant dies either leaving a Will which makes no provision for their partner (perhaps because it predates the relationship); or without a Will, known as dying “intestate”, in which case cohabitees do not inherit any part of the estate.

In these circumstances, the surviving cohabitee has a potential claim under the Inheritance (Provision for Family and Dependants) Act 1975 (“the 1975 Act”) for financial provision which is “reasonable for [their] maintenance” to be made from the estate. If the couple had children (or children treated as children of the family), the survivor can also make a claim on behalf of any such minor children (adult children can bring their own claims).

The criteria for assessing a 1975 Act claim are similar to the factors the court considers in a divorce: the applicant’s resources and needs; those of any beneficiary of the estate; the obligations and responsibilities the deceased had to the applicant; the size and nature of the estate; any physical or mental disability of the applicant and any beneficiary; and any other matter the court considers relevant. The court’s discretion is therefore wide, subjective and extremely fact specific.
The 1975 Act directs that, in claims brought by cohabitants, additional factors should be considered: namely the age of the applicant, the length of the cohabitation, and the contribution of the deceased to the welfare of the family. This means that, if a couple lived together for a considerable period of time, the survivor’s claim is likely to be given more weight than if the couple had only recently moved in together.

Case study

Jane and David lived together for ten years but never married. They had two children together and Jane also has a child from a previous relationship who was treated as a child of the family.

Jane did not work as she looked after the three children. David paid for all the household outgoings and gave Jane an allowance of £2,000 a month for her and the children. David had a Will but it was made prior to his relationship with Jane and left everything to his mother.

David was tragically killed in an accident. Jane has two potential claims: firstly for maintenance for herself; and secondly for maintenance for the benefit of not only David’s biological children, but also the third child whom David maintained.
Clearly the best solution is to try to avoid any potential claims arising in the first place, and a good way to do this is to review (and update if appropriate) your Will on the happening of any significant “life event”, for example a new relationship, the birth of a child or purchase of a property.

Cohabiting couples could also consider putting a cohabitation agreement in place. These documents regulate the terms of occupation in lifetime and also help evidence the parties’ intentions about financial support, which can be helpful in any 1975 Act claim.

A cohabitation agreement is commonly prepared alongside a Will and can make specific reference to maintenance for dependants and also what the couple intend to happen to their property if their relationship breaks down, thus avoiding potentially difficult and expensive claims in lifetime.

At Mills & Reeve we have specialist lawyers who can assist with the preparation of Wills and cohabitation agreements, and a contentious trust and probate team who deal with claims against estates after death.