Prior to the Civil Partnership Act 2004, the law created a wholly unfair inequality in inheritance laws between different and same sex couples. The only way to ensure that your partner would receive anything from your estate was to make a Will specifically including them.
No matter how committed, long standing and ‘marriage-like’ your relationship, failure to do so would mean that they would receive absolutely nothing. Now, with the passing of the 2004 Act Civil Partnerships can be entered into which have the same standing as marriage in the eyes of the law. A gift to a civil partner or and inheritance under the intestacy rules benefits from the same spouse exemption as gifts between a married couple. Civil partners also benefit from the transferable nil rate band meaning that tax planning is identical to those couples choosing to marry. Civil partners are also now protected where there is no Will because they benefit under the ‘intestacy rules’ which apply in these situations. But where does the law leave couples who chose not to enter into a civil partnership?
The Inheritance (Provision for Family and Dependants) Act 1975 allows certain classes of people to claim against an estate where reasonable provision ought to have been made for them. Since the Civil Partnership Act the relevant classes are (a) married spouses and civil partners, (b) former spouses and civil partners and (ba) those who during the period of two years prior to the date of death were living ‘as husband and wife’.
In order for a relationship to qualify under section (ba) many factors will be considered. In particular, the period lived together in the same household, the intimacy and commitment of the relationship and how it was presented to/viewed by the outside world. The court will look to award reasonable financial provision for the survivor to maintain themselves in a manner suitable to the circumstances.
For those couples who do not wish to formalise their relationship by a civil partnership, the Inheritance (Provision for Family and Dependants) Act offers some relief should the survivor find themselves disinherited under the intestacy provisions. However, claiming against an estate is not an easy process.
There is a time limit within claims can be made and proper advice must be sought. It is therefore by no means a substitute for making provision in a Will but it can be a welcome lifeline.
The Law Commission continue to consult on the issue of cohabitation and they are currently awaiting the Governments final response to their recommendations which have focused on whether, where a cohabitant dies without a will (intestate), the surviving partner should have automatic rights to inherit and a review of the Inheritance (Provision for Family and Dependants) Act 1975 as it applies to cohabitants and their children.
