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Court decision highlights merits of automatic inheritance rights for cohabitants

  • February 22, 2016
  • By Hunters Law

This article was also published in Family Law.

The reporting of Joy Williams’ successful court application for a share of her former partner’s house brings back into the spotlight the issue of inheritance after living together without getting married or forming a civil partnership.

Cohabitants are not treated in the same way as a spouse on death. When one of them dies, the survivor does not have automatic rights under the intestacy rules to inherit their partner’s estate irrespective of how long they lived together and even if they had children together. A surviving cohabitant may make a claim at court under family provision legislation if no or inadequate provision has been made by will or through intestacy.

Although Joy Williams owned the family home with Norman Martin, Norman never divorced his wife Maureen. When Norman died of a heart attack in 2012, his share passed automatically to Maureen because Norman and Joy owned their house as tenants in common. But the trial judge yesterday decided his share should now go to Joy, considering it a fair and reasonable result. This was because they had shared the house as part of a loving and committed relationship, described as living in all material respects as husband and wife in a way in which they expected to spend the rest of their lives. Maureen’s argument that she and her husband were not estranged despite Norman having moved out of the family home as long ago as 1994 to live with Joy was rejected. It is understood that Maureen intends to appeal, and media reported comments suggest considerable upset about the court proceedings both Joy and Norman.

In order to claim as a cohabitant, Joy had to establish under the current law that for two years up to his death she had lived in the same household as Norman as his wife or that immediately before his death she was being maintained wholly or partly by him. In 2011, the Law Commission published the draft Inheritance (Cohabitants) Bill intended to give some unmarried partners who had lived together for 5 years, the right to inherit on each other’s death under the intestacy rules without going to court. The Law Commission distinguished between cohabitant’s rights on death and on separation, reflecting the growing prevalence and public acceptance of cohabitation. However, the previous Government shelved those proposals in March 2013.

An interesting feature of yesterday’s decision is that Maureen has been ordered to pay £100,000 towards Joy’s costs, and the legal bill for both Joy and Maureen is no doubt set to grow much more with the intended appeal. Providing automatic rights for cohabitants on death would assist in reflecting the way modern families are increasingly choosing to live their lives outside marriage, as well as potentially reducing or eliminating future disputes, thereby reducing expense and distress to those who have suffered a bereavement in these increasingly common circumstances.

Graeme Fraser

Partner, Hunters incorporating May, May & Merrimans

 

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