The Harsh Reality of the Intestacy Rules for Unmarried Couples
The Office for National Statistics (ONS) reports that ‘unmarried couples living together is the fastest-growing type of family in the UK’ as the number of cohabiting couples have ‘doubled to 2.9 million since 1996.’ However, the Intestacy Rules in Northern Ireland preserve and protect the traditional ‘nuclear family’ tree which is bound by a civil or religious ceremony and the exchanging of vows. The same protections are not extended to cohabitees who have enjoyed the same love and joyous relationship with their partners, albeit without a marriage certificate.
It is important for unmarried couples to understand that the law in Northern Ireland does not bear the same legal rights, protections and duties to one another as would be the case if they were married often leading to a multitude of issues arising where one partner dies without leaving a Will.
At P.A. Duffy & Co. our expert probate Solicitors understand how difficult life can be in the aftermath of the death of a loved one, both emotionally and financially. Therefore, we have devised a short explanation of the risks associated with Intestacy for unmarried couples and the legal remedies available to them.
What is a cohabitee?
A cohabitee in this context is someone who lived with their partner in the same household and had done so as if they were their spouse or civil partner for two whole years prior to their partner’s death.
What is ‘intestacy’ and why are the rules relating to it problematic for cohabitees?
Intestacy is a term used to describe the status of a person’s estate (that is all of their assets) where they have died without a Will. In legal terms they would have died intestate.
Intestacy in Northern Ireland is governed by The Administration of Estates (NI) Act 1955 and the Administration of Estates (NI) Order 1979 – together they are known as ‘The Intestacy Rules’).
Unfortunately, this legal framework does not provide cohabitees with any automatic legal entitlement to any part their partner’s Estate where they have died intestate which is significantly in contrast to the various protections, comforts and entitlements afforded to spouses or civil partners of those who have died intestate.
Cohabitees can only potentially receive a share of their deceased partner’s estate if they make a legal claim under relevant legislation known as the Inheritance (Provision for Family and Dependants) (NI) Order 1979.
The remedy which the court may award cohabitees for these claims is further reduced to maintenance alone - which is usually a nominal sum to ensure that the cohabitee can get by.
Case Example:
In the case of Cattle v Evans (2011), Tina had been in a relationship with her partner David for 18 years and had been cohabiting for 5 years before David sadly died. David had two children called Paul and Gareth from a previous marriage. David did not have a Will, he died intestate with a modest estate of £185,000.00. Under the Intestacy Rules the whole of his estate went to his two sons, Gareth and Paul in equal shares.
Tina received nothing under the current legislation.
Tina was unable to work due to medical reasons and she relied on rent from her own house as income while she lived in David’s house, but now she had no legal entitlement to it!
Therefore, Tina brought a legal claim against David’s Estate under Article 4 of Inheritance (Provision for Family and Dependants) (NI) Order 1979.
And what did the court award her?
Tina was only awarded a right of residence in a smaller house than she had been living in with David. No maintenance monies were awarded as she would be receiving a small sum of money from the rent of her own property.
Law Reform?
The inferior protections and ‘right’ of cohabitees, or lack thereof, is a longstanding issue and was brought to the attention of the Government only two years ago by the Women and Equality committee
The Committee, amongst various other proposal; recommended that unmarried partners who had lived together for at least five years should have the right to inherit each other’s Estate on death under the intestacy rules, without having to go to court.
Unfortunately, this proposal was rejected.
The Legal Remedies Available to Protect Cohabitees
During the lifetime of both cohabitees, they can:
Make a valid Will which makes adequate provision for your Partner.
Your assets will be devised according to your Will rather than the Intestacy Provisions.
Enter into a Cohabitee Agreement.
This is a legal document which provides security for unmarried couples as it outlines both parties’ intentions and arrangements in respect of their property, finances and children in case they break up or one party passes away.
On the death of a cohabiting partner who either died without a Will or failed to make adequate provision for their partner in their Will, their partner can:
Bring a legal claim under Article 4 of Inheritance (Provision for Family and Dependants) (NI) Order 1979.
This enables the court to make a determination as to whether adequate financial provision for the applicant partner was made (either by the effect or the Will or the law relating to intestacy).
How We Can Help
If you would like to enter into a Cohabitation Agreement, make a Will or bring a legal action against your deceased partner’s estate our expert Private Client and Probate Solicitors would love to hear from you!