Inheritance rights for unmarried partners may be reformed

The government has announced plans to reform the rules that apply on death to non-married partnerships, bringing them more in line with those applicable to married partnerships and civil partnerships.

Whilst no formal changes have yet been made, therefore we don’t know for certain what those changes will look like, indications are that some non-married partnerships (i.e. those that meet the “qualifying criteria”) will automatically benefit from each other’s estate in the event one of them dies without having made a will. This is not the case at the moment.

There are also suggestions that other changes may be made, for example, to the position of non-married partnerships under the Inheritance (Provision for Family and Dependants) Act 1975, potentially meaning that more non-married partnerships qualify for making a claim than is currently the case.

What do the current intestacy rules mean for non-married partners?

As it currently stands, whilst spouses/civil partners receive most, if not all, of their partner’s estate under the rules of intestacy, non-married partners do not feature at all, regardless of the length/nature of the relationship. Instead, if one person in an unmarried partnership dies, their estate would pass to the deceased’s children (assuming they had any) or to their parents, siblings or wider family.

For a long time, this has not reflected the nature of many modern relationships. It is not uncommon today for partners to be very much committed to one another, to own property together, and even to have children together, yet not be married. The intestacy rules, which came into force over 100 years ago, do not account for this. This can lead to situations in which the surviving partner risks losing their home, income, or other assets to their partner’s children or more distant relatives. It can also result in a parent making a claim against their own child (under the Inheritance (Provision for Family and Dependants) Act 1975).

The proposed amendments would, it is hoped, go some way to rectifying this.

Who will qualify under the new rules?

There is little guidance at the moment on precisely what the “qualifying criteria” will be, but indications are that they will be linked to the length of the relationship, whether the partners were living together at the time of death, and whether they had children together.

Of course, a balance needs to be struck between ensuring that committed partners do not suffer simply because they have not chosen to get married, but also ensuring that entering into a relationship does not automatically entitle someone to receive their partner’s assets (in the event they have not made a will) as this could be open to abuse.

Claims under the Inheritance (Provision for Family and Dependants) Act 1975  

There have also been suggestions that changes may be made to the requirements for those seeking a greater provision from an estate under the Inheritance (Provision for Family and Dependants) Act 1975. The rules may be changed to make it easier for a non-married partner to qualify, especially if they share children with the deceased.

Again, this will be far more reflective of many relationships today. However, it will be interesting to see whether non-married partners are brought into the “special” category of claimant under this Act, which currently applies only to spouses/civil partners.

Under the current Act, unmarried partners must prove that they need a greater provision from their partner’s estate. In other words, if they have sufficient funds to meet their own needs, they will not be able to make an inheritance act claim. This can lead to situations that appear unfair. For example, if partners have lived together in the deceased’s property for several years, it may be that the surviving partner is forced to move out simply because they don’t need to continue living in the property. The sentimental attachment they may have to their home is irrelevant, legally speaking.

This wouldn’t necessarily be the case if they had been married/in a civil partnership, as spouses/civil partners do not have to prove that they need greater provision. They only have to show that they have not received fair provision.

What can unmarried partners do in the meantime?

Unmarried partners are free to make a will setting out what they would like to happen to their estate on their death. If they want their partner to benefit, this will need to be recorded in a will.

It will, of course, remain the case that someone in a relationship but not married can make a will, even if new rules come into force. This is even more important if there may be competing claims against their estate (such as from their partner and children), just as it is for married partnerships.

Will this solve the majority of inheritance disputes?

Whilst changes to the intestacy rules and/or Inheritance (Provision for Family and Dependants) Act 1975 would be more reflective of the nature of many relationships in society today – committed and long-term but not “formal” in the legal sense of the word – we anticipate that it may result in a shift when it comes to challenges against estates. For example, at the moment, if someone dies leaving behind children from a previous relationship and a partner they were not married to, the children take priority over the partner. If the proposed changes come into force, it would, in fact, be the partner who then took priority over the children.

This could cause contention if the wealth accumulated by the deceased was primarily from their relationship to their children’s other parent, or if they were financially supporting their children until their death.

It is not clear yet precisely what the “qualifying criteria” will be.

 Presumably, it will centre on the length of the relationship, whether the partners lived together, and perhaps whether they had children together. It will be interesting to see how strict the rules are.

Life isn’t necessarily as neat as some laws would assume, we may find that there are disputes centred around whether a relationship qualifies under the new rules. For example, there is disagreement about when the partners began cohabiting.