Law Commission calls for new intestacy laws for cohabiting couples

The Law Commission have published a report calling for a change to the intestacy provisions for unmarried couples.

Currently they have no entitlement whatsoever to each other’s estate, although claims can potentially be made by those who have cohabited for more than two years ‘as husband and wife’ on an estate under the Inheritance (Provision for Family and Dependants) Act 1975.

The new proposals would see cohabitants able to inherit each other’s estate with equal rights to spouses where they had lived together for more than five years or in the case of couples with children, for two years. The recommendations are encompassed in the Inheritance (Cohabitants) Bill.

Some have criticised the proposals as bringing in cohabitation laws ‘through the backdoor.’ One commentator, Jill Kirby an author and lawyer said it was ‘chipping away at the institution of marriage.’ Meanwhile the Commission argued that the Bill ‘reflects the growing prevalence and public acceptance of cohabitation’. They also argued that the proposals preserve the special treatment given to married couples as cohabitants would have to live together for the qualifying periods in order to benefit.

The rights would not apply where one of the couple remained married to a former spouse.

Commentators have also pointed to the difficulties facing couples whose co-habitation falls just short of the required period. The Bill forms part of a wider review of inheritance law generally, including ensuring that all spouses inherit the entirety of their partner’s estate where there are no descendants or children.