Law Commission publishes recommendations on cohabitants' rights

14 December 2011

By Hugh Logue, Newswatch Editor

The Law Commission has published its recommendations on reforming the law on intestacy and family provision claims on death, including a proposal that certain cohabitants should be entitled to inheritance rights without a will.

The report, published today, sets out and explains the Commission's recommendations for reform of the law and presents two draft Bills to implement the necessary changes.

The draft Inheritance and Trustees' Powers Bill includes reforms that would:

  • ensure that where a couple are married or in a civil partnership, assets pass on intestacy to the surviving spouse in all cases where there are no children or other descendants;
  • simplify the sharing of assets on intestacy where the deceased was survived by a spouse and children or other descendants;
  • protect children who suffer the death of a parent from the risk of losing an inheritance from that parent in the event that they are adopted after the death;
  • amend the legal rules which currently disadvantage unmarried fathers when a child dies intestate;
  • remove arbitrary obstacles to family provision claims by dependants of the deceased and anyone treated by the deceased as a child of his or her family outside the context of a marriage or civil partnership;
  • permit a claim for family provision in certain circumstances where the deceased died "domiciled" outside of England and Wales but left property and family members or dependants here; and
  • reform trustees' statutory powers to use income and capital for the benefit of trust beneficiaries (subject to any express provisions in the trust instrument).

The draft Inheritance (Cohabitants) Bill contains further provisions that would give certain unmarried partners who have lived together for five years the right to inherit on each other's death under the intestacy rules. Where the couple have a child together, this entitlement would accrue after two years' cohabitation, provided the child was living with the couple when the deceased died.

Responding to the  Law Commission's recommendations today, Resolution's Chair, David Allison, said: "The death of a partner is a painful enough experience, without becoming embroiled in disagreements about financial settlements during a time which should be spent mourning the loss of a loved one.

"We believe this news will come as a relief to the more than two million couples that currently live together, and we would urge the government to take this recommendation forward.

"There is a popular myth that the "common-law" spouse is afforded legal rights - this simply isn't the case. This doesn't mean cohabitants would have equal rights to married couples, but it does reflect the way that many people are choosing to live their lives, and it is important that the law recognises this."

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