Law Commission – Intestacy Reforms

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    In December the Law Commission published its long awaited report into intestacy and family provision claims on death. The repor t contains recommendations for reform of the law in
    these areas following responses to the consultation paper published in 2009.

    The largest part of the report focuses on the area which causes the most significant problems under current legislation. Where a couple live together, but are unmarried, the current law
    dictates that the survivor is not automatically entitled to inherit any part of the deceased’s estate. This is the case regardless of the period of time the couple have ‘cohabited’ or whether or not they have had children together.

    According to the report; research suggests that there are 2.3 million cohabiting couples within the UK and that the current trend means this figure will be closer to 4 million within the next 20 years.

    The Law Commission recommend reform of this current legislation but with limited scope. They recommend that a bereaved, unmarried, partner should not need to go to Court in order to inherit a share of their partner’s estate where the couple has cohabited for at least 5 years prior to death. This period is reduced to two years where the couple have had children together. Although the Commission are reluctant to lower this period of time to include all cohabiting couples, regardless of the length of the cohabitation period, it recommends that the period required before a claim against an estate can be made is lowered from the current two year period.

    These changes would bring English law into line with the current law in other Commonwealth jurisdictions.

    The report contains a draft Bill, the Inheritance (Cohabitants) Bill, which has been deliberately separated from other recommendations. The proposals have prompted lively debate across the
    industry; the focus being on how a ‘cohabitant’ should be identified and how it is possible to establish that someone was, or was not, living in accordance with the provisions of the Bill at the time of death. It does not state at what point the status of an ‘unmarried partner’ is acquired or lost and the vagueness of the definitions has been criticised. The new legislation, if it is enacted, could cause problems for those dealing with an intestate estate.

    Aside from cohabitation the report also reaffirmed the automatic right of spouses to inherit, but discussed proposed changes to how the current intestacy rules deal with the estate. They
    recommend that, where a spouse dies leaving no children, the surviving spouse should inherit the entire estate. This contrasts with the current provisions that provide a surviving spouse with the first £450,000 of an estate with the rest being shared with the deceased’s parents or siblings.

    Where a spouse dies leaving children the current £250,000 statutory legacy will remain but the Commission have recommended that the current complex trust and life interest provisions relating to the rest of the estate are to be simplified. Instead, the spouse will split the remaining estate with the children outright. This view was highly supported in the consultation however ideas to deal with the family home separately received little support and have been shelved.

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    Matt Walkden Will Writer

    About Matt Walkden

    I am a Professional Will Writer and I offer a small number of other products that complement my Will Writing such as Lasting Power of Attorneys (LPA’s), Fixed Price Estate Administration, often called Probate and some Property Products such as changing a family home from Joint owners to Tenants in Common.

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