A fairer future for cohabitants? Well, depending on the definition of a cohabitant..........

In 1996 cohabitants were added to the list of people who could make a claim for financial provision from a deceased person’s estate but only if they have been living together as Husband & Wife for at least 2 years. A recent report by the Law Commission has proposed that childless cohabitants who have been together for 5 years prior to death should have the same rights as spouses; those who have lived together for 2-5 years should be entitled to 50% of what spouses would receive and those with children should have the same rights without the need for a minimum duration. This is hot on the heels of New South Wales where new intestacy laws (i.e. where the deceased hasn’t made a will) include within their definition of ‘spouse’ domestic partners in relationships of over 2 years or those with children.

Stevens & Bolton LLP family associate Elen Humphreys commented:

“Between 1996 and 2006 the proportion of cohabiting couple families increased from 9% to 14% and it is therefore no surprise that there is an increasing expectation that someone in a cohabiting couple should be entitled to something from their deceased partner’s estate. One difficulty is of course identifying ‘cohabitants’ which may not be a straightforward task. Also, it is questionable whether it is fair to impose time-limits rather than considering the strength of a relationship for instance. The Law Commission’s final report is due in 2011 and there is no guarantee that even if their proposals remain the same that they will become law. We will therefore have to wait and see if New South Wales are in fact one step ahead.”

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