Few would dispute that family life in England and Wales has changed significantly over recent decades. Increasing numbers of couples choose to live together without marrying or entering a civil partnership, often for many years and frequently with children. Against that backdrop, proposals to extend automatic intestacy rights to cohabiting partners are intended to reflect modern social realities and address situations where a surviving partner may otherwise receive nothing from an estate.
The objective is understandable. However, there is a real question whether reform in this area would solve more problems than it creates and decisions certainly shouldn’t be made in haste. The fundamental challenge is that the law of intestacy depends on certainty and clear categories. Cohabitation, by contrast, is often defined by facts and circumstances that are anything but clear-cut. The result may be a system that generates greater uncertainty, increased disputes and additional pressure on the courts.
A further question is whether there is a demand for change. Those who decide not to marry are often doing so deliberately and consciously. There are still options available to cohabitants to protect each other on death, outside of marriage, like making a Will or Declarations of Trust for example.
The difficulty of defining a qualifying cohabitant
The starting point is the question that sits at the heart of any reform: who qualifies?
A frequently discussed approach is a "marriage-equivalence" test, under which a surviving partner would need to show that they lived in the same household as the deceased and were in a relationship equivalent to that of a spouse or civil partner for a prescribed period. That has a degree of attraction because it builds on concepts already familiar to practitioners through the Inheritance (Provision for Family and Dependants) Act 1975.
The difficulty is that such a definition appears clearer in theory than in practice. Courts dealing with claims under the 1975 Act undertake a detailed examination of the evidence, considering factors such as shared residence, financial interdependence, mutual commitment and how the relationship was presented to family, friends and the wider world. No single factor is decisive. Instead, judges conduct a holistic assessment of the relationship.
That approach works because the court is specifically tasked with investigating contested facts. Intestacy rules operate differently. Their strength lies in providing an automatic framework for distributing estates without requiring extensive factual enquiries. Introducing a category that depends upon nuanced assessments of personal relationships risks undermining that certainty.
In practice, who would decide whether a person qualified? Personal representatives are unlikely to welcome the prospect of making sensitive judgements about the nature of the deceased's relationships. Where family members disagree, the issue may ultimately require judicial determination, potentially increasing probate disputes rather than reducing them.
Establishing eligibility may become the dispute
The practical realities should not be underestimated. Many long-term cohabiting relationships would be straightforward. Others would not.
Evidence may include bank statements, household bills, tenancy agreements, property ownership records and witness testimony. Family members may have different views about the nature of the relationship. The deceased, of course, can no longer explain their intentions.
The irony is that a reform designed to provide certainty might instead shift the battleground from claims about financial provision to arguments about status. Before any distribution could take place, parties might first have to litigate whether a surviving partner met the statutory definition of cohabitation.
This concern becomes particularly acute in estates where emotions already run high and competing beneficiaries stand to gain or lose substantial sums depending on the outcome.
The challenge of competing relationships
The issue becomes even more complex when modern relationships do not fit neatly into traditional legal categories.
More unconventional living arrangements create further questions. Long-term shared households, blended families and polyamorous relationships all present challenges for a legal framework that assumes a single qualifying partner. Once the law moves away from the relatively objective status of marriage or civil partnership, determining who counts and who does not becomes considerably harder.
What does it mean for existing Wills?
Any reform may also have unintended consequences for testamentary planning.
Marriage currently revokes an existing Will unless the Will was made in contemplation of that marriage. The rationale is straightforward: a significant change in personal circumstances should trigger a reassessment of testamentary intentions.
If cohabiting relationships are to be given enhanced legal status within the intestacy regime, questions inevitably arise as to whether they should have similar consequences. Should a qualifying cohabiting relationship affect an existing Will in some way? If not, what distinguishes its legal significance from that of marriage for these purposes?
There may be no easy answer, but the issue illustrates the interconnected nature of succession law. Reforming intestacy rules in isolation risks creating inconsistencies elsewhere in the framework.
A difficult balancing exercise
The desire to modernise the law and reflect contemporary family structures is both understandable and arguably overdue. However, intestacy legislation functions best when it provides clear and predictable outcomes.
The central challenge for policymakers is whether cohabitation can be incorporated into that framework without sacrificing certainty. Defining qualifying relationships, resolving competing claims, accommodating non-traditional family arrangements and reconciling Inheritance Tax treatment are all issues that remain unresolved.
Reform may ultimately prove necessary. But unless these difficulties can be addressed, extending automatic intestacy rights to cohabiting partners risks importing ambiguity into a system that depends upon clear rules, with the likely consequence of more disputes, more litigation and greater strain on an already stretched court system.
How TWM can help
For cohabiting couples, the key takeaway is not to assume that living together will automatically give you the right to inherit from your partner. Whatever changes may come to the law, making a Will remains one of the clearest ways to ensure your wishes are respected and your partner is provided for. If you own property together, a Declaration of Trust can also help clarify your respective interests.
Taking advice now can help you understand your options and avoid unnecessary uncertainty for your loved ones in the future. To discuss your circumstances, please contact our Private Client team for an initial, no-obligation consultation.