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Cohabitants to be given same intestate rights as married couples

29 October 2009

Cohabitants who have lived together for more than five years could be given the same rights as married couples under plans unveiled by the Law Commission today.

The proposals, out for consultation until 28 February 2010, suggest that if a cohabitant dies without a will and the couple do not have children, the survivor would have the same rights over the estate of the deceased partner as a surviving spouse in a marriage.

If there are children, the minimum qualifying period would drop to two years, but ordinary rules would apply by default if fewer than two years had elapsed.

Professor Elizabeth Cooke, the commissioner leading the project, said the two-year cut off was chosen because it was already regarded as a meaningful period under current rules on dependency claims.

For cases of death between two and five years where there are no children, the commission is suggesting a graduated entitlement.

Current intestacy rules provide that the surviving spouse in a childless marriage is entitled to up to £450,000 of his/her deceased spouse’s estate. Anything above that is to be shared with the deceased’s immediate blood relatives – parents and siblings.

Where there are surviving children, the entitlement drops to a maximum of £250,000 with the rest being divided in two halves and the surviving spouse only entitled to a life interest in one half.

According to the Law Commission, the current rules operate in such a way that the surviving spouse inherits the whole of the deceased spouse’s estate in 90 per cent of cases.

The main proposal for reform is that where there are no children, the surviving spouse should inherit the whole estate in all cases; with parents, children and other relatives being protected under statutory legacy rules.

The commission is, however, concerned that where there are children they should be protected. One option would see the surviving spouse inherit the belongings and receive a statutory legacy, with a proportion of the estate outright. The children would take everything else. Another option would give special treatment to the family home, allowing the surviving spouse to live in it while possibly also receiving a minimum statutory legacy.

A report and draft Bill are expected in late 2011.

The consultation can be accessed on the the Law Commission’s website: www.lawcom.gov.uk/intestacy

Categorised in:

Procedures Marriage & Civil partnership Children Wills, Trusts & Probate