Cohabitation and Death

When one member of a cohabiting couple dies, it can come as an unpleasant shock to the bereaved partner  to discover that they may not have any legal right to take a share in the estate in the absence of a will.

Many people think that they are entitled to a share on the same basis as a spouse as they have had a  "Common Law Marriage."At law there is no such thing.

Where there are assets which are jointly held (as ‘joint tenants’ in legal terminology), these will pass by survivorship to the other partner. Property held jointly and joint bank accounts are normally held in this way. Also, if there is a life assurance policy or there are pension benefits payable to a nominated person, then the surviving partner will receive these if they are the named beneficiary.

Once such assets have been dealt with, however, the rules of intestacy apply to the estate if there is no will. An intestate estate passes to the relatives of the deceased. This will normally leave the deceased’s partner with nothing, although they can make a claim for provision out of the estate if the deceased  might reasonably have been expected to make finacial provision for them.

A surviving cohabitee can make a claim if the deceased died intestate or failed to provide for them in the will if:

they were maintained by the deceased in whole or in part immediately before the death of the deceased; 

or for two years prior to the death of the deceased they lived in the same household as the deceased as if they were the husband, wife or civil partner of the deceased.

In such cases the court may be requested to make ‘reasonable provision’ for the applicant. There are a series of guidelines which have been set to ensure that the provision made is fair, bearing in mind the size of the estate and the circumstances of those with an interest in it. The rest of the estate is then distributed according to the rules of Intestacy.

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