If you’re living with a partner but not married or in a civil partnership, you might assume that you have similar rights to a spouse or civil partner when it comes to inheritance or financial provision if your partner passes away. However, the law treats cohabitees very differently. It's crucial to understand your rights as a cohabitee and the steps you can take to protect yourself in such a situation. In this blog post, we’ll explore what rights cohabitees have upon the death of their partner and the legal avenues available to them.
1. Inheritance Rights for Cohabitees when your Partner Dies
Cohabitees (those who live together as if they are married or in a civil partnership but without formalising their relationship) generally do not have the same inheritance rights as spouses or civil partners. If a partner dies without leaving a Will (intestate), the surviving cohabitee is not automatically entitled to inherit under the intestacy rules.
However, there is a potential remedy under the Inheritance (Provision for Family and Dependants) Act 1975 (I(PFD)A 1975). To make a claim under this Act, the cohabitee must meet one of the following conditions:
They must have lived with the deceased as if they were spouses or civil partners for at least two years immediately before the death.
They must have been maintained (financially supported) by the deceased.
A successful claim under this Act can lead to the court ordering a reasonable financial provision from the deceased’s estate for the surviving cohabitant, but it requires legal action and is not guaranteed. This comes with a significant cost, stress and time burden and all at a time when you are likely to be at one of the lowest points in your life, having just lost your partner.
2. Pension Rights for Cohabitants
Pensions can be a significant concern for cohabitees when one partner dies. The Supreme Court ruling in Re an application by Denise Brewster for Judicial Review established that it was discriminatory for public sector pension schemes to require a nomination form for a cohabitee to receive a survivor's pension. The court ruled that this requirement should be disapplied in public sector schemes, meaning that a surviving cohabitee in a public sector scheme may be eligible for a survivor’s pension without a nomination form. However, this ruling does not extend to private sector pension schemes, where the nomination requirement still stands. Therefore, if you are in a private sector pension scheme, it's essential to check the scheme’s rules and ensure you are properly nominated if you wish your partner to receive benefits.
3. Bereavement Benefits for Cohabitants
Recent changes have extended certain bereavement benefits to cohabiting couples with children. Under the Bereavement Benefits (Remedial) Order 2023, cohabitees may now be entitled to Bereavement Support Payments and the Widowed Parent’s Allowance if they have dependent children. This change has retrospective effect to 30 August 2018, meaning it applies to claims dating back to that date.
This extension acknowledges the role of cohabiting couples with children, treating them similarly to married couples and civil partners regarding bereavement benefits. However, it is important to check eligibility requirements and understand that not all bereavement benefits may be available to cohabitees without children.
4. Property Rights for Cohabitants
Cohabitees do not have the same property rights as married couples or civil partners. When a partner dies, disputes over property are generally resolved based on trust law rather than family law.
If a cohabitee wishes to claim a share in a property that is not in their name, they may need to establish a beneficial interest through one of the following legal doctrines:
Resulting Trust: Arises where a person has contributed to the purchase price of the property, even if their name is not on the title deeds.
Constructive Trust: Can be established if there is evidence of a common intention that the property would be shared, and the claimant has acted to their detriment based on that understanding.
Proprietary Estoppel: Applies if the surviving cohabitee can show that they were led to believe they would have an interest in the property, and they acted to their detriment based on that belief.
These claims can be complex and require legal advice and potentially court action to resolve.
5. Summary: Avenues for Cohabitees
While cohabitees have some legal rights and potential avenues for financial provision upon the death of a partner, their rights are generally more limited than those of spouses or civil partners.
Key areas where cohabitees may have rights include:
Claiming financial provision under the Inheritance (Provision for Family and Dependants) Act 1975 if they meet the criteria.
Receiving bereavement benefits if they have dependent children, following the Bereavement Benefits (Remedial) Order 2023.
Accessing a survivor’s pension under public sector schemes, following the Supreme Court ruling in Denise Brewster’s case.
Establishing property rights through trust law, which often requires proving a beneficial interest in the property.
Protecting Your Rights as a Cohabitee
If you are in a cohabitee relationship, consider taking proactive steps to protect your rights and financial security:
Make a Will: Ensure both you and your partner have up-to-date Wills that clearly state your intentions and provide for each other.
Review Pension Schemes: Check with your pension provider(s) about the nomination requirements and ensure that nominations are up-to-date.
Consider Cohabitation Agreements: These legal agreements can outline your shared rights and responsibilities, including what happens in the event of one partner’s death.
Seek Legal Advice: Consult a legal professional to understand your rights and plan accordingly.
Conclusion
While cohabitees do not have the same rights as married couples or civil partners when a partner dies, there are still steps you can take to protect your interests. Understanding the legal landscape, making appropriate claims, and taking proactive measures can help ensure that your rights are recognised and your financial security is safeguarded. It is better to take action now and leave provision for your partner rather than leave them with heartache, stress, anxiety and financial hardship and having to try to claim against your estate later on.
If you need legal advice or to talk through your options, then contact us. We're here to help.
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