Cohabitation and intestacy reform: the certainty problem

Few would dispute that family life in England and Wales has changed significantly over recent decades. Increasing numbers of couples choose to live together without marrying or entering a civil partnership, often for many years and frequently with children. Against that backdrop, proposals to extend automatic intestacy rights to cohabiting partners are intended to reflect modern social realities and address situations where a surviving partner may otherwise receive nothing from an estate.

The objective is understandable. However, there is a real question whether reform in this area would solve more problems than it creates and decisions should not be made in haste. The fundamental challenge is that the law of intestacy depends on certainty and clear categories. Cohabitation, by contrast, is often defined by facts and circumstances that are anything but clear-cut. The result may be a system that generates greater uncertainty, increased disputes and additional pressure on the courts.

A further question is whether there is a demand for change. Those who decide not to marry are often doing so deliberately and consciously. There are still options available to cohabitants to protect each other on death, outside of marriage, for example, by making a will or declaration of trust.

The difficulty of defining a qualifying cohabitant

The starting point is the question that sits at the heart of any reform: who qualifies?

A frequently discussed approach is a "marriage-equivalence" test, under which a surviving partner would need to show that they lived in the same household as the deceased and were in a relationship equivalent to marriage or civil partnership for a prescribed period. That has a degree of attraction because it builds on concepts already familiar to practitioners through the Inheritance (Provision for Family and Dependants) Act 1975.

The difficulty is that such a definition appears clearer in theory than in practice. Courts dealing with claims under the 1975 Act undertake a detailed examination of the evidence, considering factors such as shared residence, financial interdependence, mutual commitment and how the relationship was presented to family, friends and the wider world. No single factor is decisive. Instead, judges conduct a holistic assessment of the relationship.

That approach works because the court is specifically tasked with investigating contested facts. Intestacy rules operate differently. Their strength lies in providing an automatic framework for distributing estates without requiring extensive factual enquiries. Introducing a category that depends upon nuanced assessments of personal relationships risks undermining that certainty.

In practice, who would decide whether a person qualified? Personal representatives are unlikely to welcome the prospect of making sensitive judgments about the nature of the deceased's relationships. Where family members disagree, the issue may ultimately require judicial determination, potentially increasing probate disputes rather than reducing them.