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Intestacy rights a 'relief' for two million cohabitants

Law Commission describes cohabitation as an 'accepted family form'

19 December 2011

Law Commission plans to give long-standing cohabitants the same rights as married couples on intestacy have been welcomed as a “relief” for more than two million couples.

David Allison, chair of Resolution, said the death of a partner was a painful enough experience “without becoming embroiled in disagreements about financial settlements during a time which should be spent mourning the loss of a loved one”.

He said the news would “come as a relief to the more than two million couples that currently live together” and the government should implement the plans.

“There is a popular myth that the ‘common law’ spouse is afforded legal rights,” Allison said. “This simply isn’t the case.”

In its final report on intestacy and family provision, the commission was keen to distinguish its recommendations on intestacy from its proposals to give cohabitants a share in their partner’s property on separation, which the government has decided not to take forward in this parliament.

Professor Elizabeth Cooke, the law commissioner leading the project, said there was a difference between a relationship that had ended and “a committed relationship which is still going on” at the time of the death.

The commission recommended that cohabitants who have lived together for at least five years should be entitled to their former partner’s estate under intestacy.

Where there are children, the commission said the qualifying period should be reduced to two years.

Professor Cooke said the two-year period was the same as the minimum for cohabitants wanting to make dependency claims under the Fatal Accidents Act.

Lord Justice Munby, chairman of the commission, admitted that the two and five-year limits were in some ways arbitrary, but should be seen as a “proxy for commitment”.

He said: “The two most obvious proxies are children and duration.”

Professor Cooke said that other common law systems had financial remedies for cohabitants on intestacy and cohabitation was becoming an “accepted family form”.

In its report, the commission argued that its proposals maintained the primacy of marriage and civil partnership and only applied where the deceased was not in either kind of relationship.

Professor Cooke said the commission’s suggested reforms for married couples and those in a civil partnership on intestacy would make the law “simpler, less technical and problematic”.

The main change is abolition of the spouse’s life interest in larger estates, where the value of the assets exceeds the statutory legacy. The legacy is set at £250,000 for married couples with children and at £450,000 for those without.

Under the current rules, the remainder of the estate is shared equally between the spouse and relatives, with the spouse getting a life interest in half of it.

Under the commission’s regime, where there were no children, the spouse would get everything. The parents of the deceased, or the siblings where the parents were already dead, would get nothing.

Where there were children, the spouse would get half the remainder absolutely, with the children or other relatives getting the other half.

Lord Justice Munby said intestacy was something that many people had to deal with on their own, without legal assistance.

He said that since lawyers have to be involved where there is a life interest, removing the need for this “could be advantageous in terms of efficiency and saving cost” at a time of emotional stress.

Categorised in:

Wills, Trusts & Probate