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Cohabitants could be entitled to to make family provision claims

Law Commission issues consultation on intestacy and family provision claims

The Law Commission has published a consultation outlining potential reforms to the law of intestacy and provision for families and dependants on death. The 200 page consultation document sets out several proposed reforms including the possible inclusion of cohabitants within the intestacy rules, saying that

“the current law causes hardship for cohabitants and is out of line with public opinion, as well as giving rise to unnecessary litigation under the 1975 Act which could be avoided if cohabitants had an entitlement on intestacy.”

The Commission is then proposing that, among other things

"that for the purposes of the intestacy rules a cohabitant should be defined as a person who, immediately before the death of the deceased:

(1) was living with the deceased as a couple in a joint household; and
(2) was neither married to nor a civil partner of the deceased."

Where the couple have a child during cohabitation:

"(1) there should be no minimum duration requirement for an entitlement on intestacy for the surviving cohabitant; and
(2) the surviving cohabitant should be entitled under the intestacy rules to the same entitlement as a spouse."

Where there are no children,

"the surviving cohabitant should be entitled under the intestacy rules to the same entitlement as a spouse, if the cohabitation had continued for at least five years before the death."

And where the period of cohabitation is between 2 and 5 years

"the surviving cohabitant should be entitled under the intestacy rules to 50% of the amount which a spouse would have received from the estate."

Similarly under the Inheritance (Provision for Family and Dependants) Act 1975,

"if the surviving cohabitant and the deceased are by law together the parents of a child, there should be no minimum duration requirement for the survivor to be entitled to apply under section 1(1)(ba) of the Inheritance (Provision for Family and Dependants) Act 1975, provided that the cohabitation was continuing at the date of death."

They are also proposing that under the 1975 Act

"in order to qualify for an award under the Inheritance (Provision for Family and Dependants) Act 1975 as a cohabitant the applicant must have been living as a couple in a joint household with the deceased immediately before the death."

And that any

“reasonable financial provision” for a cohabitant is defined as such financial provision as it would be reasonable in all the circumstances of the case for the applicant to receive, whether or not that provision is required for the applicant’s maintenance.

The consultation closes on 28 February 2010 and the consultation paper, along with summaries and other supporting documents such as a spreadsheet that allows the user assess what a surviving spouse might receive under reformed rules, are all available on the Law Commission website via this link.