A century of change

As we approach the centenary of the Administration of Estates Act 1925, it’s clear that the law has not kept pace with the evolving family dynamics in England and Wales. The “Intestacy Rules” established by this Act were designed for a time when the nuclear family — consisting of a married couple and their children—was the norm. However, today’s families are more diverse, with an increasing number of couples choosing not to marry. This continuing trend increasingly highlights a significant flaw in the intestacy rules: they don’t provide for unmarried or cohabiting partners.

The 1925 framework

In 1925, the intestacy rules dictated that if the deceased was married, the surviving spouse received personal possessions, the first £1,000 of the estate (free of death duties), and potentially interest. If there were no children, the entire estate went to the surviving spouse. With children, the spouse received half of the remaining estate, and the other half went to the children on statutory trusts until they turned 18 years old. If there was no spouse but children, the estate was divided equally among the children on statutory trusts. In the absence of a spouse and children, the estate would be distributed to relatives in a specified order, starting with parents and siblings.

While the amounts have been updated (e.g., the surviving spouse now receives personal possessions, the first £322,000 of the estate, and half of the remaining balance), the basic rules have not changed. Crucially, there is still no provision for unmarried or cohabiting partners.

This is the case, no matter how long they have lived together and even if they had children together. Indeed, children can make the situation much more difficult. If there is one (or more) children under the age of 18, the estate assets become tied up in the statutory trusts described above, and the surviving partner can be put in a position where they have no choice but to make a claim against the deceased partner’s estate for financial provision, to the detriment of their own children.

The amount a cohabiting partner will receive under such a claim would also almost certainly be less than a surviving spouse making a claim. A surviving spouse or civil partner is entitled to seek whatever financial provision it would be reasonable for them to receive, whether or not that provision is required for maintenance. A cohabitant may only seek reasonable provision for their own maintenance.

Modern family dynamics

Today, many couples choose to live together without marrying. Despite the evolving nature of relationships, the intestacy rules continue to ignore cohabiting partners, regardless of the length of the relationship or whether they have children together. This can create significant challenges, especially if there are minor children involved, as the estate assets become tied up in statutory trusts.

Statistics paint a clear picture of the shift in family structures:

• Marriage rates: In 1921, there were 320,852 marriages in England and Wales. By 2021, this number had dropped to 239,097 marriages, despite a much increased and growing population. The percentage of adults married or in a civil partnership fell below 50% for the first time in 2021.
• Cohabitation: The number of cohabiting but unmarried couples rose 144% between 1996 and 2021, from approximately 1.5 million to 3.6 million. The number of opposite-sex cohabiting families with dependent children more than doubled, and same-sex cohabiting families increased by a staggering 938%.

The legal gap

Contrary to popular belief, there is no “common law spouse” status recognised under English law. This gap in the law means that cohabiting partners have no automatic inheritance rights if their partner dies without a Will. The Law Commission’s 2011 recommendations to address this issue, including provisions for cohabitants who lived together for 5 years or more, remain unimplemented. Despite repeated calls for reform, progress has been slow, and the rules continue to fail to reflect modern family realities.

Why estate planning is crucial

Given these outdated rules, it’s vital for everyone — especially cohabiting couples — to have a Will. Without a Will, your estate will be distributed according to intestacy rules, which may not align with your wishes or those of your loved ones. A Will allows you to specify exactly how your estate should be divided, ensuring that your partner and any children are provided for according to your preferences.

If you are cohabiting or have experienced a significant life change, now is the time to consult with an expert. A well-drafted Will can prevent disputes and ensure your loved ones are taken care of as you intend.

If you have lost a partner and need assistance navigating the complexities of sorting out the finances, whether that is dealing with their estate, or if it is necessary to make a claim for financial provision for you, please contact us.

We are here to help you through every step of the process, ensuring that your wishes are honoured, and your family is protected.