Inheritance disputes following the death of a cohabitee
Contrary to popular belief, there is no such thing as common law marriage and if you are not married and your live-in partner dies, you have no automatic legal right to inherit all of your loved one’s estate unless they made this clear in their will.
Jim McGarrity, Solicitor-Advocate in the Private Client Services team at Geoffrey Leaver Solicitors outlines the common inheritance disputes that can arise when a cohabitee dies, and your options for resolving such a dispute.
If your cohabitee dies without leaving a will, you will automatically inherit everything which you and your partner owned in joint names, such as any property owned as joint tenants, money held in joint bank accounts, and life assurance and pension benefits if you were named as the beneficiary in the policy.
However, once such assets have been dealt with, if your partner did not leave a will the strict laws of intestacy will apply.
This means that anything your partner owned will go to your partner’s relatives in the order set out in section 46 of the Administration of Estates Act 1925, and you would not have the automatic right to inherit anything further.
This would include your home if it was solely in your partner’s name, or their share of the home if you owned it as tenants in common.
This may come as a shock if your partner led you to believe otherwise, or if you were financially dependent upon them.
Inheritance (Provision for Family and Dependants) Act 1975 claims
You may be able to make a claim on the estate for ‘reasonable financial provision’ if your partner died intestate or did not make any provision for you in their will and you are classed as a ‘dependant’ under the Inheritance (Provision for Family and Dependants) Act 1975.
You would count as a dependant if:
- you were financially supported by your partner completely or partially immediately before they died; or
- if you had lived with your partner as if you were spouses for two years before their death.
How much you receive would be at the discretion of the court and will depend on a number of factors such as:
- the size of the estate;
- the number of people who have an interest in the estate;
- the current and future financial needs of you and any other beneficiaries or applicants;
- any responsibilities the deceased person had towards any beneficiary or applicant;
- any mental or physical disability of any beneficiary or applicant; and
- anything else the court considers relevant – including your conduct.
The court has wide powers to divide the estate and it could make orders for you to receive a lump sum or periodic payments from the deceased person’s estate. Indeed, in a 2019 Court of Appeal case the court ruled that a longstanding cohabitee had the right to benefit from her cohabitee’s occupational pension scheme.
You should bear in mind that anything you receive from the estate through an Inheritance Act claim will be subject to inheritance tax, as you will not qualify for the exemption which a spouse or a civil partner would be entitled to.
In addition, if you have a good income of your own, you are unlikely to win an award for ‘reasonable financial provision’ as money would not be required to maintain you.
Your rights if your cohabitee left a will
Disputes can arise even if your partner left a will. For example, if they died and left everything to you in their will, anyone else who is classed as a dependant of your deceased partner and who expected to receive a bequest in the will could make a claim under the Inheritance Act. This would include a former spouse who has not remarried, children, and even those who were treated as a child of the deceased person.
Alternatively, if someone feels that they have not been adequately provided for in the will, they may challenge it. For example, they may claim that it was not validly drawn up according to the Wills Act 1837, whereby a will needs to be signed, witnessed, made voluntarily and without duress, and made by a person of sound mind.
A potential beneficiary might claim that you put undue pressure on your partner to draft the will in your favour, or that your partner was not mentally capable of deciding who should benefit from the will. Such a dispute can usually be dealt with if a doctor testifies as to mental capacity and the will has been drawn up by an experienced solicitor.
Alternative dispute resolution
Inheritance Act disputes, like any other contentious litigation can be both time-consuming and costly. One way of avoiding court and thus keeping costs down would be to try to resolve the dispute out of court using either:
- Mediation – this sees an independent third party sitting down with all potential beneficiaries and getting them to talk through their issues until an acceptable resolution is found.
- Collaborative law – this would see you meeting all the interested parties to discuss the issues, but each party would be accompanied by their own collaborative lawyer who will offer legal advice and possible resolutions.
- Arbitration – this sees an arbitrator examining all the evidence and hearing all the arguments before coming to a final decision which is binding on all the parties.
How a solicitor can help
If your live-in partner has died and a dispute has arisen, our solicitors can advise you on the most appropriate form of alternative dispute resolution. If the case has to go to court, we can take care of all the paperwork, gather the required evidence, offer legal advice, and speak on your behalf in court.
This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.