A recent Government consultation on cohabitation has generated renewed discussion surrounding potential reform of the current intestacy rules, with a view to better reflect modern family structures across households. Could this create a gateway to an overhaul of the current legal framework, challenging the exclusion of cohabitants from automatic inheritance rights?
There remains a recurring misconception that “common law marriage” is recognised in England and Wales, alongside a widespread myth that cohabiting couples acquire the same legal rights as spouses or civil partners upon the death of a partner. In reality, common law marriage does not have any legal status, and cohabitants do not obtain equivalent rights to those who are married or in civil partnerships, regardless of the duration of their relationship or whether they share children or finances.
This misunderstanding can often give rise to significant legal and practical difficulties, notably where cohabiting couples fail to make wills to protect their assets and testamentary wishes. As a result, surviving partners may often be forced to rely upon claims brought under the Inheritance (Provision for Family and Dependants) Act 1975. While this can provide a route to financial provisions, it is only available where specific criteria is met. Bringing such a claim during bereavement, which is already a period of emotional difficulty, can prove both costly and uncertain, with no guarantee of a successful outcome for the claimant.
The Government is exploring the possibility of reforming the cohabitation laws, which in turn would change the existing intestacy laws to mirror modern family life, where long-term cohabitation has become increasingly common. Although intestacy rules are intended to operate as a fallback provision, and the importance of creating a valid will to avoid unwelcome consequences is paramount, it could be seen as a positive step that the law evolves in line with contemporary social structures to ensure fairness amongst individuals who choose not to marry or enter a civil partnership, yet may find themselves in a situation where their deceased partner dies intestate.
The consultation considers the potential alignment of cohabitants’ rights with those of spouses and civil partners, including the introduction of a ‘marriage-equivalence’ model. Such an approach would offer a more straightforward framework, allowing surviving cohabitants to benefit from equivalent intestacy rights.
Whilst the reform could be seen as a welcome step towards providing cohabitees with more rights, there remain notable concerns which should be taken into consideration. For instance, there is the risk of exploitation and opportunistic claims arising from predatory relationships, as well as legal uncertainty in identifying qualifying cohabitants. Furthermore, the extension of such rights may give rise to conflict with wider family members over the distribution of assets. It is essential that the Government takes into account the views of professionals across a range of disciplines to ensure that any such reform is carefully and robustly developed, and does not give rise to further legal complications for grieving families.
In addition, reform in this area does raise wider practical considerations, The Government acknowledges that, should the above reforms be implemented, misalignment may arise between those who are entitled to inherit, and those authorised to administer the deceased’s estate. Currently, cohabitants have no priority to apply for Grant of Letters of Administration, with priority directed to surviving parents, children, or siblings. The Government has indicated that corresponding amendments to the Non-Contentious Probate Rules (NCPR) 1987 will be actioned to address this, allowing qualifying cohabitants to have the same priority as spouses or civil partners. Such reform would ensure consistency across all aspects of intestacy, and reduce the risk of conflict, particularly in scenarios where the individual entitled to administer the estate has a contentious relationship with the cohabiting partner who will inherit the estate’s assets.
Ultimately, while the Government’s consultation could be a positive and welcome shift towards recognising the realities of modern family life, this should not detract from the importance, certainty and assurance of a valid will. The intestacy rules are fundamentally a standardised approach, which execute the views of the “average” individual, and cannot be varied to individualised wishes. They cannot accommodate the nuances of personal circumstances, such as blended families, unequal financial contribution or specific wishes regarding asset distribution. The intestacy rules cannot account for every individual circumstance, reinforcing the importance of making a valid will to ensure one’s wishes are clearly reflected.
A valid will enables individuals to clearly articulate their wishes, ensure that all loved ones are appropriately provided for, and minimises the risk of disputes arising between family members at an already difficult time.
If you would like to discuss your own estate planning or future wishes, a member of our Private Client team would be happy to assist.
