What provision do you make for a co-habitee?

It is an old fashioned principle of English law that you can leave your estate to whoever you want. True or False?

It is actually both true and false.

It is true that unlike many other countries which prescribe that your estate must be passed on to various relatives in certain proportions irrespective of your relationship with the individuals involved, the law in this country has been that you can leave your estate to whomsoever you wish, including the local cat’s home. However, for very many years this has been overlaid with a right for people who are in some way dependant on you to make claims against your estate. The question of what is ‘dependence’ is open to debate and has been subject to frequent interpretation by the courts. Most recently, this has been seen in the Illot case which was widely reported in the mainstream press and was perceived to have widened the scope of what will qualify as dependence.

The legislation and law on this has tended to regard direct family members as the principal people entitled to make claims against your estate.  But increasingly we are living in a society where more and more people are not married and relationships are transient. This is gradually changing the law and the approach of the courts.

One of the recent changes has been the fact that many pension schemes will now make provision for long term partners. The pressure for this has been increased by the recent Northern Irish case of the woman who pursued her late partner’s pension scheme for a widow’s pension and won.

This all points more and more towards the fact that if you live with a partner or have some sort of relationship where another person may in some way be dependent on you, then it seems likely that a claim might be made against your estate.  If you think you might be in such a position, it is worthwhile getting some advice on what is the best action to take.

There are a couple of additional points to bear in mind.  Most of us think of a co-habitee as being someone who we have some sort of loving/physical relationship, however the law is not necessarily restricted to just romantic relationships. Your co-habitee could just as easily be an old friend whose husband/wife has died and with whom you agree to live because it is a comfortable and convenient arrangement.  Secondly, because English tax law favours marriage there can be some nasty tax traps attached to any provision that you make for a partner.

There are lots of different strategies for dealing with this situation.  Sometimes you and your co-habitee will have a common purpose and it is quite easy, but on other occasions your views may be somewhat different. We would usually recommend consideration of one or more of the following strategies:

  1. A will containing some sort of trust for the benefit of your partner.
  2. A co-habitation agreement.
  3. Mirror image Wills making provision for each other and your respective children.
  4. Declaration of trust relating to the ownership of your house.

It is also worth mentioning that some of the above strategies may also apply to couples who are in a second marriage.

Finally, and at the risk of being political (and some might say anti-marriage), it is perhaps inevitable that the government is going to come under pressure to change some of the tax laws which currently favour marriage. Tax, and in particular inheritance tax, gives considerable breaks to married couples whilst an unmarried couple who may have lived together for many years and raised a family, miss out on these breaks.  In our modern society this cannot be right!

For further advice please contact the Private Clients Department.

Our insights are accurate at the date of publication – they are not intended to contain definitive legal advice, which should be sought as appropriate in relation to a particular matter.

Graeme Black
Partner, Private Wealth & Inheritance
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This reflects the law and market position at the date of publication and is written as a general guide. It does not contain definitive legal advice, which should be sought in relation to a specific matter.

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