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Intestacy and cohabitation

Intestacy and cohabitation

A recent court case has challenged the basic rules of intestacy and brought the issue of cohabitation back to the surface.

The case was brought to court by Joy Williams, partner of Norman Martin who had died.

Martin separated from his wife in 1994, but crucially had never divorced her or updated his Will to include Williams. This meant that when he died his entire estate went to his estranged wife.

Half of the house, which was jointly-owned by Williams and Martin, came into the possession of his wife, throwing the security of her home into doubt.

However, in defiance of intestacy cohabitation rules, the judge upheld Williams’s case and ordered for Martin’s share to be awarded to her on the basis that the couple had lived together in essence as husband and wife.

While this case certainly says a lot about the rigidity of intestacy law, it also exemplifies what can happen should you fail to draft a Will or update it to reflect changing relationships.

The rules of cohabitation

Intestacy rules prioritise spouses over cohabitants, and though Williams’ case shows that cohabitation can provide a basis for inheritance, ‘common law spouses’ are not given the same legal protection as married couples or civil partners.

The surviving partner in an unmarried relationship has no legal claim to the deceased’s estate, irrespective of how long they lived together or whether they had children.

This could have changed in 2010 when the Law Commission recommended that cohabitants should have a place in intestacy rules. It proposed giving cohabitants who had lived together for 5 years the right to inherit through intestacy without going to court. This would be shortened to 2 years if the couple had children who were living in the home. The government later ruled out making any changes to cohabitants’ inheritance rights.

Unfortunately the number of people who are potentially at risk should their partner die without a Will has increased dramatically over the past 2 decades. The number of unmarried cohabiting couples doubled to 3.1 million between 1996 and 2015, while the rates of marriage are gradually falling.

Protect your loved ones

We all lead busy lives and finding the time for things that aren’t of immediate consequence can be a challenge.

However, putting off something as important as your Will is not worth the potential risks to your loved ones, and we strongly recommend that you set aside some time to plan what happens to your estate after you die. This is especially important if you are in an unmarried relationship.

Contact us on 01628 631 056 or email geoffk@knightandcompany.co.uk for further information about our estate planning services.