My Unmarried Partner has died without a Will; Have I lost everything?
As Bethan Chant writes in her article ‘What happens if a Loved One dies Without a Will’, whatever relationship you are in, the best way for you to ensure that everything you have worked hard for passes to the people and causes that matter to you most is to consult with a specialist solicitor and to settle a Will.
Settling a Will can be something that people put off, perhaps because no one likes to think about their mortality or simply because it is something you do later in life. Sadly, when one half of unmarried couple dies without having made a Will, they will leave their partner, in the absence of express declarations of trust relating to the property in which they live, in a very vulnerable situation at the worst possible time. This is because, in the absence of a Will, their loved one’s estate will be administered and distributed in accordance with the Intestacy Rules, which do not recognise cohabitees as being entitled to anything from their partner’s estate.
So, what can be done?
Thankfully, help is at hand through the Inheritance (Provision for Family and Dependants) Act 1975 (often simply called ‘the Inheritance Act’ or ‘the ’75 Act’) Inheritance (Provision for Family and Dependants) Act 1975. The Inheritance Act often receives quite negative sensationalist coverage in the press focussing on headline grabbing awards made under its provisions, usually to adult children. However, the Inheritance Act is there to protect the vulnerable, including those who, through no fault of their own, find themselves exposed to financial and personal insecurity due to their loved one dying without a Will.
The Inheritance Act only allows certain categories of people to bring claims, one such category being cohabitees.
Who is a cohabitee?
- To qualify as a cohabitee under the Inheritance Act, you must be able to show that: At the time that your partner died, you were living in the same household as a result of your relationship with them (so simply sharing in the same house is not enough). The courts will want to see that the relationship was acknowledged by each of you as mutually binding, was exclusive, so prioritising that relationship over other friendships, and that it was also known to those outside the home (so, friends and family will also say you were a couple living together).
- You will need to show that you were living together as if married or in a civil partnership. The courts take a flexible approach to this and acknowledge that marriages or civil partnerships cover a wide range of relationships, from the intensely loved up to the tired and mundane. The key is whether a reasonable person would view the relationship as being like a marriage or a civil partnership.
- This living together in the same household as if married or in a civil partnership must be for at least the 2 years before the partner died. Periods where the deceased was in hospital or receiving care will probably not interrupt that 2-year period. Unless there was an irretrievable breakdown, even short periods of separation may not break the 2-year requirement as long as you can show that the intention was to get back together.
You may well ask how this is all proved. Well, the court will look at how your finances were arranged, such joint bank accounts, the sharing of utility payments on a mutual basis, anniversary type celebrations, gifts to each other, gifts and cards from family and friends to you as a couple, holidays together, photos, invitations to family events (inclusion in photos at such events, such as a family photo) and so on. There is no set formula; it is about building up a picture.
What will the court award me if my claim is successful?
Unlike married or civil partner claimants, the Inheritance Act directs the court to make an award for what you need for your maintenance (this is neither subsistence nor luxury provision – the key being what is need for a reasonable level of living). In deciding this, the court will look at your age, the length of your cohabitation and the contribution you made in looking after the home and caring for any family. The court is entitled but not required (as with married and civil partner couples) to take into account the standard of living you enjoyed with your partner.
Do I have to go to court?
Only as a last resort. It is important that any claim is brought within 6 months of a grant of probate or letters of administration being granted, or an agreement is reached to suspend the time for issuing a claim before that 6-month limit is reached (it is possible to bring a claim outside of this time frame but you will need the court’s permission and be able to explain why the claim has been brought out of time). However, the courts give very strong encouragement to all parties in proceedings, even where a claim has started, to seek resolution through negotiated settlements (often by mediation or by making a written offer of settlement). This is the approach that we recommend as it saves on costs, time and emotional stress. It also is the best way to preserve family relationships or, if that is not possible or desirable, to allow the parties, depending on the terms of settlement, to have a clean break.
This is, of course, very much an overview of how the Inheritance Act works in cohabitee cases and is written largely with the cohabitee in mind. We are, however, experienced in advising both cohabitees and other family members in bring and defending such actions. So, if you need any help or guidance, whether as a cohabitee contemplating a claim or family member responding to a claim, please do not hesitate to contact Neil Johnson.