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Inheritance disputes – more cohabitees taking action than ever before

Inheritance disputes – more cohabitees taking action than ever before

An increasing number of cohabitees are making an inheritance claim against their late partner’s estate, the latest statistics from the Ministry of Justice show.

Claims climbed fourfold between 2007 and 2021 with a peak of 192 cases in 2020.

Unmarried partners are entitled to make an inheritance claim against their late partner’s estate if the Will, or the intestacy rules, fail to make adequate financial provision for them.

If you find yourself in this position, taking specialist advice at an early stage is key.

What is causing this increase in inheritance claims in cohabiting couples?

The huge increase in the number of cohabiting couples themselves is almost certainly the biggest driving factor.

At 3.6 million, cohabiting couples now make up about one fifth of all family units in England and Wales yet do not have the same legal and inheritance rights as married couples.

Another reason is the rise in the value of residential estates as property prices continue to soar. This means there is often increased motivation to make a claim.

Can you claim against your deceased cohabiting partner’s estate?

It may be possible to issue a claim under the Inheritance (Provision for Family and Dependants) Act 1975 if reasonable financial provision has not been made for you.

This can be complex and the strength of your claim will depend on the circumstances.

To claim you must:

  • Have been living together in the same household ‘as husband and wife’ for at two years immediately prior to your partner’s death;
  • Prove your partner was domiciled in England or Wales;
  • Be making your claim within six months of the issue of the grant of representation, the legal document that allows you to deal with someone’s estate.

It is also possible to claim if you were being financially supported by your late partner at the time of their death, no matter how long you lived together.

What happens if your claim is successful?

If the court decides reasonable financial provision was not made for you, it has wide powers to make orders against the estate of your late partner including lump sum or periodic payments or even orders in respect of the transfer of specific property.

Click here to read about a case of this kind although it’s worth knowing that litigation isn’t always necessary and there may be other options open to you.

Can you safeguard your position as cohabitees while you’re alive?

Yes, absolutely, and it’s very important as you have no automatic legal right to inherit your partner’s property and estate, even if you have children and have lived together for many years, if your partner dies without a valid Will in place.

Ways to do this include:

  • Drawing up a Cohabitation Agreement – click here to look at costs and timescales;
  • Considering a Declaration of Trust, setting out in what percentage shares you each own your property;
  • Making and regularly updating your Wills.

Get in touch

If you would like to contest a Will after the death of your cohabiting partner, the help of a specialist lawyer is vital as every case needs to be looked at on an individual basis. Time limits also apply.

For help and advice, please contact Wards Solicitors’ Contentious Trusts and Probate Team.

Our lawyers are members of the Association of Contentious Trusts and Probate Specialists (ACTAPS), the Society of Trust and Estate Practitioners (STEP), Solicitors for the Elderly (SFE) and the Law Society’s Probate Panel. All demand a high level of expertise and up to date knowledge from their members.

Wards Solicitors’ team is praised by the Legal 500 Guide for 2023 for its broad contentious trusts and probate practice with a particular emphasis on Inheritance Act and Court of Protection matters.

Head of the team, Elizabeth Fry, is highlighted as a key lawyer specialising in high value and multi-jurisdictional matters.

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