What can you do if your partner, to whom you are not married but with whom you have been living, dies unexpectedly and either failed to make provision for you in his or her will, or died without ever making a will?
Whilst the age old general rules of law do not provide you with an answer, there is a ray of hope that enables an unmarried partner to seek to become a beneficiary of the deceased’s estate.
It is a sad fact that society moves at a faster pace than the law does, and the law struggles to keep up. Law students learn of “sociological jurisprudence” which maintains that the law is adaptive to society’s needs. Society has a problem, and the law subsequently provides a solution. With the problem solved, society moves on, until it meets with another problem for the law to solve.
Certain contested probate cases arguably provide an example of the law struggling to keep up with an ever-changing society.
Through centuries, people have lived together in accordance with certain standards expected by society. For most of that time, it was expected that a man and a woman would marry before living together and raising a family, and generally people conformed to this standard. However, in this modern day and age such attitudes seem to be outdated. Many couples choose to live together without marrying, and indeed some of those couples are not made up of both a man and a woman.
For many decades the law has dictated that, when a person dies without making a will, a significant portion of his or her estate passes to his or her husband or wife. Those couples that live together outside of marriage do not have this protection. Whilst the law has recently managed to broaden its horizons so that it treats civil partner equally to a spouse, it does not offer its protection to a same-sex couple that have not entered into a civil partnership regardless of the level of commitment in the relationship.
The deceased’s unmarried partner is not provided for if the deceased died intestate.
The unmarried partner may be in an even worse position if the deceased had previously produced a will that did not make any provision for the partner.
Whilst it is not an ideal solution, the Inheritance (Provision for Family and Dependants) Act 1975 provides a degree of protection.
The act provides that an unmarried person, who was cohabiting with the deceased for a period of 2 years immediately before death as if they were married, is entitled to seek provision from the deceased’s estate (without having to show financial dependence on the deceased).
What counts as “cohabiting” is given a broad definition, and focuses upon whether or not a person was part of the deceased’s household. Therefore, if the deceased spent a long period of time in hospital prior to death, and thus was not actually living with the Claimant during that time, he will still be classed as being part of the household, and the Claimant is still eligible to claim.
When determining if 2 people were cohabiting for the purposes of this act, the court will consider various factors such as whether the parties lived together, the stability of their relationship, any financial support that may have been provided, the existence of a sexual relationship, caring for a child of the relationship, and public acceptance of that relationship. If an ordinary person with reasonable perceptions can accept that 2 people were living together as if husband and wife, then the court will accept it also.
The rules apply to same-sex couples as much as they apply to heterosexual couples.
The court will have regard to the age of the applicant and the length of the relationship and the contribution that the applicant made to the welfare of the family of the deceased, including looking after the home or caring for the family.
It is possible for somebody to be classed as being a cohabitants of the deceased, even if there are 2 households, provided that those 2 households do not have 2 separate domestic economies.
If this is accepted, then the court will go on to ask whether the terms of the deceased’s will (or the laws of intestacy) bring about an unreasonable result for that Claimant, and whether or not that Claimant requires provision for his or her reasonable financial maintenance.