Rise in Inheritance Disputes and Rights of Cohabitees

29 March, 2021 5 minutes reading time

Inheritance disputes taken to court reached a record high last year, according to the Ministry of Justice. This increase is largely due to the rise of non-traditional families, including more unmarried couples living together. Long-term cohabiting partners, second or third spouses (often with children from previous relationships), and others who feel they have a claim to a family member’s estate all contribute to this huge rise in inheritance disputes.

Rights of Cohabitees

Despite the trend for cohabiting, the law hasn’t caught up; regulations mostly geared toward married couples. Yet many long-term cohabiting couples still think that they automatically inherit their partner’s share of any property they live in together. Sadly, this isn’t the case.

Under English law, if there isn’t a Will or the only Will that exists is found to be invalid, the deceased person’s estate is distributed according to the rules of intestacy.  If there is a properly executed Will, English law respects the wishes of the deceased, even when their wishes may not necessarily be what family and friends are expecting.

However, it is possible under the Inheritance (Provisions for Family & Dependants) Act 1975 for a spouse and certain other individuals to contest a Will if that person can show that the Will fails to make reasonable financial provision for them.

Eligibility Under the Inheritance Act 1975

To be eligible, you must be either:

1. A child or children of the person who has died;
2. Those treated on a similar footing;
3. A spouse or long-term cohabiting partner; or
4. An individual(s) who were being “maintained” by the deceased

Provision for Long-term or Cohabiting Partners

Unmarried partners have different legal rights than married couples. If a will doesn’t provide for them, or if there’s no will (intestacy), they can make a limited claim for financial support. To qualify, they must have been financially dependent on the deceased or lived together for at least two years before the death. Even if their claim is successful, they’ll still have to pay inheritance tax, unlike a surviving spouse.

Importance of Case Law

While the law generally offers less protection to long-term partners or cohabitees compared to spouses or civil partners, recent court decisions show a more flexible and understanding approach in real-world situations.

Unmarried partner maintaining own houses

Lindop v Agus, Bass and Hedley [2009] EWHC B 14 (Ch). This Inheritance Act case centred on whether the claimant was living with, and maintained by, the deceased so that she could claim under the Act. The deceased was a dentist, who died suddenly aged 37 after being together for 5 years. The couple had met at work. Both had children from previous relationships. A year after the meeting, the deceased asked the claimant to move in. Rather than move in immediately, the couple would use both properties. The claimant retained her father’s address as her main postal address and as the contact point for her child.

Even though the claimant wasn’t registered as living at the deceased’s property, the Judge agreed with her claim that she was being maintained by the deceased and so she was also eligible for financial provision under terms of The Act.

Unmarried partner living out of a suitcase

In the case of Koteke v Saffarini [2005], the Court of Appeal was tasked with interpreting the meaning of ‘household’.  The evidence presented showed that the deceased had retained his own home, leaving his wardrobe and possessions there. He lived at his partner’s using things kept in an overnight bag.

The court emphasised the difference between wanting to live together and actually living together. Sharing expenses, like groceries or meals out, showed a committed relationship, but it didn’t prove they shared a household..  This distinction was also later upheld in the Court of Appeal decision in Baynes v Hedger [2008].

Unmarried partner living apart

In Gully v Dix, the claimant had cohabited with the deceased for 27 years but had moved out 3 months before his death due to his drunkenness and threats of self-harm. So, the importance of ‘living within the same household for at least two years was put to the test.

Even though the claimant wasn’t living with her partner when he died, the judges didn’t think the usual two-year cohabitation rule was the only factor to consider. They noted that she still hoped he would overcome his drinking problem so they could reunite. Because a promise to change would have brought her back, her claim for financial support from his estate was successful.

Our Advice

The cases above show that Inheritance Act claims are decided based on the specific details of each situation. While courts are now more flexible in their approach, these disputes remain complex and often expensive, like any legal battle.

The best way to avoid exposure to risk or potentially costly litigation is to make sure there is a detailed, properly drafted, valid Will. And update it regularly to take account of any change in personal circumstances.

For further information or advice about making a Will or any aspect of estate planning, please contact us. We’re here to help.

Please note that all views, comments or opinions expressed are for information only and do not constitute and should not be interpreted as being comprehensive or as giving legal advice. No one should seek to rely or act upon, or refrain from acting upon, the views, comments or opinions expressed herein without first obtaining specialist, professional or independent advice. While every effort has been made to ensure accuracy, Curtis Parkinson cannot be held liable for any errors, omissions or inaccuracies.

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