Reform for cohabiting couples

Cohabitating couples and intestacy: how to protect your loved one from financial hardship after death.

Many cohabiting couples in England and Wales believe they have the same legal rights as married couples, but this is not the case, particularly on death.

The Intestacy Problem

Under the current law, cohabitants have no automatic right to inherit from a partner who dies without a Will. Instead, the estate is distributed according to a strict hierarchy of relatives under the Administration of Estates Act 1925 from:

• Spouses or civil partners
• Children
• Other relatives

This applies regardless of the length of the relationship or whether the couple had children together.

The Inheritance (Provision for Family and Dependants) Act 1975

In these circumstances, the only legal recourse available for a surviving cohabitant is to bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975. Under this route, the surviving cohabitant must show that:

• They lived with the deceased as if they were spouses or civil partners for at least two years prior to death.
• The estate does not make reasonable financial provision for them.

However, this route has significant drawbacks:

• There is no guaranteed outcome, as the decisions are at the Court’s discretion
• Claims can be costly and time-consuming
• The process may cause additional strain during an already difficult time

Proposed reforms for cohabiting couples

The Government is considering reforms aimed at better reflecting modern relationships and providing greater certainty. The suggestions are as follows:

Extending Intestacy Rights to Cohabitants

A key proposal is to allow qualifying cohabitants to inherit automatically under the intestacy rules, reducing the need for court claims in straightforward cases.

To qualify, cohabitants would need to meet:

• A clear legal definition for cohabitation (which is yet to be determined)

A minimum cohabitation period (potentially five years, or lower if the couple had children)

Aligning Probate Rights

At present, cohabitants cannot apply for a Grant of Administration. This can lead to impractical outcomes where a non-benefiting relative is required to administer the estate.

The proposed reforms would:

• Give qualifying cohabitants priority to administer the estate, similar to spouses
• Improve efficiency and consistency in the probate process

Reform of Financial Provision Claims

The Government is also considering removing the two-year cohabitation requirement under the I(PFD)A 1975 in cases where the couple had children together. This would ensure that:

• Partners in shorter relationships are not excluded from making a claim
• Families with children are better protected

Likely outcomes of reform

Greater Financial Security for Cohabitants

If implemented, these reforms could:

• Provide automatic inheritance rights in many cases
• Reduce reliance on costly litigation
• Offer greater certainty for surviving partners

Fewer Court Disputes—But Not Eliminated

While reforms may reduce disputes in straightforward cases, conflicts are likely to persist, particularly in blended families.

For example:

• Children from previous relationships may see their inheritance reduced
• This may lead to completing claims under the I(PFD)A 1975

In practice, disputes may shift rather than disappear.

Continued Distinction from Marriage

Importantly, the Government has made clear that cohabitation will not be equated with marriage. Differences will remain, including:

• More limited financial provision rights
• Potential disadvantages in areas such as inheritance tax

Protecting Your Partner

While reforms are under consideration, they are not yet in force. The safest way to protect your partner from financial hardship is to put a valid Will in place.

If you would like to ensure your estate passes in accordance with your wishes, please contact us on 0191 232 9547 to discuss preparing a Will.