Background

Inheritance disputes following the death of an unmarried partner

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What are your rights to inherit?

Contrary to popular belief, there is no such thing as common law marriage and if you are not married and the partner you live with dies, you have no legal right to inherit from their estate, unless they made provision for this within their Will.

This article outlines the common inheritance disputes that can arise when a cohabiting unmarried partner dies, and your options for resolving such a dispute.

Intestacy rules

If your cohabiting partner dies without leaving a Will their estate will have to be dealt with under the intestacy rules. There are however assets which belong to the deceased, which you can automatically receive the benefit of. These include anything which you and your partner owned in joint names, such as any property (provided this is owned as joint tenants), any money held in joint bank accounts, and the benefit of any life assurance policy or pension (if you were named as the beneficiary in the policy/pension).

However, outside of these assets, as we have said above, if your partner did not leave a Will the strict laws of intestacy will apply. This means that anything your partner owned will go to your partner’s relatives in the order set out in section 46 of the Administration of Estates Act 1925, and you would not have the automatic right to inherit anything further. It also means that you may not have control of the administration of the estate itself, as this again is undertaken by the members of the family in a set order.

This could mean that if your home was solely in your partner’s name, or if the property was jointly owned, but held by you as tenants in common, your ability to be able to remain in the home could be at risk.

This may come as a shock if your partner led you to believe otherwise, or if you were financially dependent upon them.

Inheritance (Provision for Family and Dependants) Act 1975 claims

You may be able to make a claim on the estate for ‘reasonable financial provision’ if your partner died intestate or did not make any provision for you in their Will and you are classed as a ‘dependant’ under the Inheritance (Provision for Family and Dependants) Act 1975.

You would count as a dependant if:

  • you were financially supported by your partner completely or partially immediately before they died; or
  • if you had lived with your partner as if you were spouses for two years before their death.

How much you receive would be at the discretion of the court and will depend on a number of factors such as:

  • the size of the estate;
  • the number of people who have an interest in the estate;
  • the current and future financial needs of you and any other beneficiaries or applicants;
  • any responsibilities the deceased person had towards any beneficiary or applicant;
  • any mental or physical disability of any beneficiary or applicant; and
  • anything else the court considers relevant – including your conduct.

The court has wide powers to divide the estate and it could make orders for you to receive a lump sum or periodic payments from the deceased person’s estate. Indeed, in a 2019 Court of Appeal case the court ruled that a longstanding cohabitee had the right to benefit from her cohabitee’s occupational pension scheme.

You should bear in mind that anything you receive from the estate through an Inheritance Act claim will be subject to inheritance tax, as you will not qualify for the exemption which a spouse or a civil partner would be entitled to.

In addition, if you have a good income of your own, you are unlikely to win an award for ‘reasonable financial provision’ as money would not be required to maintain you.

Your rights if your cohabitee left a Will

Disputes can arise even if your partner left a Will. For example, if they died and left everything to you in their Will, anyone else who is classed as a dependant of the deceased (who expected to receive a bequest or be provided for) could also make a claim under the Inheritance (Provision for Family and Dependants) Act mentioned above. This would include a former spouse who has not remarried, children of the deceased, and even those who were treated as a child of the deceased person.

Alternatively, if someone feels that they have not been adequately provided for in the Will, they may challenge it. For example, they may claim that it was not validly drawn up according to the Wills Act 1837, whereby a Will needs to be signed, witnessed, made voluntarily and without duress, and made by a person of sound mind.

A potential beneficiary might claim that you put undue pressure on your partner to draft the Will in your favour, or that your partner was not mentally capable of deciding who should benefit from the Will. Such a dispute can usually be dealt with if a doctor testifies as to mental capacity and the Will has been drawn up by an experienced solicitor.

Alternative dispute resolution

Inheritance disputes, like any other contentious litigation can be both time-consuming and costly. One way of avoiding court and thus keeping costs down would be to try to resolve the dispute out of court using either:

  • Mediation – this sees an independent third party sitting down with all potential beneficiaries and getting them to talk through their issues until an acceptable resolution is found.
  • Collaborative law – this would see you meeting all the interested parties to discuss the issues, but each party would be accompanied by their own collaborative lawyer who will offer legal advice and possible resolutions.
  • Arbitration – this sees an arbitrator examining all the evidence and hearing all the arguments before coming to a final decision which is binding on all the parties.

How a solicitor can help

If your partner has passed away and a dispute has arisen, our solicitors can advise you on the best way of resolving the dispute as expeditiously and economically as possible. If the case has to go to court, we can take care of all the paperwork, gather the required evidence, offer legal advice, and either represent you or arrange representation at any hearing.

For further information, please contact Helen Townsend in the dispute resolution team on 01733 882800 or email [email protected].

Helen Townsend LLB, Partner


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