What rights do cohabiting couples have to each other’s assets in the event of death?

What rights do cohabiting couples have to each other’s assets in the event of death?

Having an effective will is essential when preparing for the future. But what rights do cohabiting couples have to each other's assets in the event of death when their will fails to make provisions for the surviving partner?

Although there are many unmarried couples who cohabit and live together, it should not be assumed they have the same rights to each other's assets as spouses or civil partners.

In the event of a death, if a partner has not made a Will, their estate will not automatically pass to the surviving partner but to their immediate family under the Intestacy Riules. But even if there is a Will it could be challenged if it fails to make adequate provision for the surviving partner.

Lewis v Warner

In this recent case, the court heard that Mr Thomas S. Warner (now aged 91), an independently financially secure man, had happily cohabited with Mrs Audrey Blackwell in her home for over 20 years in the village of Twyning Green in Gloucestershire. They did not marry.

Mr Warner who has various ongoing heath issues was surprised to outlive his partner. When Mrs Blackwell died in May 2014 her last will could not be found, so a reconstituted version was submitted to probate.

The will stated that her entire estate, mainly consisting of her home, was to be passed to her daughter and only child, Mrs Lynn Lewis. No provision was made in the will for Mr Warner.

Mr Warner in the meantime continued to live in the property and in January 2015 Mrs Lewis sought a court order to evict Mr Warner so she could put the property on the market to sell.

In response, Mr Warner claimed under the Inheritance (Provision for Family and Dependants) Act 1975 that the will failed to make reasonable provision for his maintenance.

The County Court's decision

At the County Court, the Recorder (Christopher Gardner QC) and given the absence of a full definition of maintenance within the Act, interpreted keeping a roof over the applicant's head to fall within the definition of maintenance in section 1(2)(b).

The fact that the deceased's will had failed to preserve this meant that it failed to make reasonable provision for Mr Warner, regardless of his financial status.

This decision was particularly supported due to Mr Warner’s physical disability, age, length of time that the property had been his home and his contributions towards the costs of the property over the years.

The Recorder also took into account the location of the house, an area where Mr Warner had grown up and lived all his life, and that he lived next door to neighbours who would look after his welfare.

All of which satisfied him that the upheaval and likely consequences of Mr Warner having to move should be avoided, if at all possible and that he should acquire the property from Mrs Lewis for £385,000 (the value was based on the higher of two separate expert valuations of the property).

The deceased's daughter, Mrs Lewis, appealed the decision.

The High Court's decision

The High Court (Newey J) upheld the County Court’s order, and said that the Recorder was right to conclude that the deceased’s will had failed to make reasonable provision for Mr Warner within the meaning of section 1(2)(b).

The High Court also agreed that the Recorder was right to compel Mrs Lewis to transfer the house over.

What this means for you

Despite what you may have read or heard, there are no “common law” rights for cohabitating couples to claim financial relief after a separation or even a bereavement. This can leave you in a very vulnerable position.

If you’re not married and your partner dies, you receive nothing automatically and will only do so if you’re a dependent and require maintenance or unless provision has been made for you in a Will. Then you may have to make a claim at court. 

The law that affects cohabiting couples is based on old property and trust laws and is quite complex.

It's essential to seek professional advice if you intend your will to favour one potential beneficiary over another.

Arranging a cohabitation agreement and then replicating the details in your will can establish what happens to your property and other possessions.

Need advice on wills or cohabitation agreements?

For advice on wills, please call Stephen Walker on 01482 324252 or email sw@gosschalks.co.uk

For advice on cohabitation agreements, please call Mark Reeves on 01482 324252 or email mar@gosschalks.co.uk to arrange a FREE, no-obligation chat.

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