Family provision claims on death and intestacy rules: Law Commission recommends changes Law

Changes to the intestacy rules

The most radical change recommended by the Law Commission is that a "common law spouse" cohabitant should inherit from their partner where there is no will in place.

The Law Commission recommends that a qualifying cohabitant should have the same rights as a surviving spouse under the intestacy rules, as set out below. The Commission is proposing a move from the current position where cohabitants must opt in to provide for each other by making wills in each other's favour, to a new position - arguably reflecting current social expectations - where the cohabitants would have to opt out of providing for each other by making wills not in each other's favour. Research has shown that there are more than 2.3 million cohabiting couples in the UK, many of whom do not realise that, if one of the couple dies without leaving a will, the other will not automatically inherit.

For a cohabitant to qualify, they must have been living as the deceased's spouse or civil partner and in the same household as the deceased for five years before the death or living together for only two years if they have a child together and the child was living with the couple at the date of death. A person cannot be a qualifying cohabitant in any circumstances if the deceased was already married or in a civil partnership, although they might be eligible to claim against the deceased's estate under the 1975 Act (see below).

The Law Commission's also recommends more generous provision for surviving spouses (including surviving civil partners) where there is no will.

First, where an individual dies intestate leaving a spouse but no children or grandchildren, the Law Commission recommends that the whole estate should pass to the spouse. In higher value estates at present, the estate is shared between the spouse and the deceased's parents or siblings, which is often a surprise for all concerned.

Secondly, where someone dies intestate leaving a spouse and children or grandchildren, the Law Commission recommends that a complicated trust for the surviving spouse should no longer arise. Instead, the spouse should receive all of the deceased's personal items, a fixed sum – known as the statutory legacy – of £250,000, plus half of any balance of the estate outright. The children or grandchildren would receive the other half of the estate at age 18, as is currently the case. The removal of a trust for the spouse in these circumstances would simplify the current rules.

Changes to the 1975 Act

Under the current law, it is not possible to bring a 1975 Act claim against the estate of a non-UK domiciled person. The Law Commission has proposed changes to this restriction where the non-domiciled person owned immovable assets (i.e. property) in England or Wales. In such circumstances, and assuming you are eligible to bring a 1975 Act claim, you would be able to claim against the deceased's entire estate, although in practice the UK courts are unlikely to make orders against foreign assets. This should reduce the time and cost currently spent determining the deceased's domicile before a substantive claim can even be made.

For a cohabitant of the deceased who is not eligible to inherit under the changes to the intestacy rules above, the Law Commission recommends that if the cohabitant and the deceased had a child together, the cohabitant should be able to bring a 1975 Act claim regardless of how short a time they might have been living together with the deceased.

A person who was treated by the deceased as a child of his or her family is currently only permitted to claim family provision under the 1975 Act if that treatment was in the context of a marriage or civil partnership. The Law Commission is of the view that it is the quality of the relationship between the deceased and the child that should determine whether a child can claim against the deceased's estate. It therefore recommends that the definition of a child of the family should no longer be limited to situations where the deceased was married or in a civil partnership. It should apply to children who are treated as children by the deceased, whether or not the deceased is biologically or legally their parent and even in a single adult / child scenario.

Where a person was being maintained by the deceased immediately before the death, the Law Commission recommends that it should be easier for them to pursue a claim. At present, this person has to prove that the deceased assumed responsibility for their maintenance and that the deceased contributed more financially to the relationship than they did. The Law Commission recommends that these questions should merely be factors taken into account by the Court in determining whether an award should be made, rather than points which can act as a bar to bringing a claim in the first place.

Next steps

The Law Commission has prepared draft legislation implementing these and other more technical changes for the government to review. The government has not yet indicated when it will respond to the report and recommendations, but it seems clear that at least some – if not all – of these changes will become law in due course.

The Law Commission has recognised that the changes in relation to cohabitants are likely to be the most controversial. It has therefore recommended that these be incorporated into a standalone piece of legislation so that the other less controversial proposals can be implemented separately and more quickly. We will update you as matters develop.

Despite the Law Commission's recommendations, the very clear message remains that it is always better to avoid the intestacy rules altogether by making a professionally drawn will.

For further information please contact Andrew Goldstone or Mark Keenan