Nasty shocks can be in store for cohabitees when one of the partners dies without making a will. The late partner’s estate will not automatically pass to them in the absence of a will made in favour of the survivor. The rules of intestacy will be applied, which will entitle the relatives of the deceased rather than his or her partner to the deceased’s property.
One exception to this is where property – often the home – is held as joint tenants. Where assets are jointly held as joint tenants, they will pass by what is known as survivorship to the other partner. This will often also apply to joint bank accounts and possibly life assurance policies or pension benefits where the surviving partner has been nominated to receive payment. Other property, however, including the home if not held as joint tenants, could well be claimed by relatives, leaving the deceased’s partner with nothing and very possibly at risk of losing their home.
The law does, however, allow a dependent partner to claim provision from the estate under the Inheritance (Provision for Family or Dependents Act) 1975. Surviving cohabitees can make a claim if the deceased died intestate or failed to make proper provision for them in a will if:
- They were maintained by the deceased in whole or in part immediately before the death of the deceased; or
- For two years prior to the death of the deceased they lived in the same household as the deceased as if they were husband, wife, or civil partner of the deceased.
If these conditions apply, the court may be requested to make ‘reasonable provision’ for the surviving partner. This provision must be fair bearing in mind the size of the estate and the circumstances of others who may have an claim on it. The court has an absolute discretion and considerable powers when deciding how to divide the estate. They can include orders for periodical payments or lump sums or the transfer of specific property belonging to the deceased to the claimant. Remember, however, that for inheritance tax purposes the spouse exemption from tax will not apply, and a cohabitee may have to pay inheritance tax on any property received.