Rights of cohabitating couples

Succession for unmarried couples has come under the spotlight after a recent landmark decision by the UK Supreme Court which considered the pension entitlement of a cohabitee.

Miss Brewster cohabited with her partner, Mr McLellan, for 10 years before his sudden death in December 2009 at the age of 43. Miss Brewster raised a claim against Mr McLellan’s employer as she was denied the right to receive his occupational pension because she was not his wife and there was no nomination form nominating her to receive it. Miss Brewster argued that the rule discriminated against unmarried couples. The Supreme Court ruled unanimously in her favour, awarding her right to receive Mr McLellan’s pension.

This decision is a positive step forward for unmarried couples in the UK. However, legal rights for unmarried couples on death are still very limited and offer little protection. Miss Brewster’s case, taking 7 years to resolve, is a prime example of the potential difficulty and expense faced by unmarried couples in inheriting their partner’s estate.

Rights Of Cohabiting Couples

Lindsay Kirkwood a Solicitor in Miller Hendry’s Dundee office comments, “Cohabiting families in the UK have grown exponentially in the last 20 years, more than doubling from 1.5 million to approximately 3.3 million. Contrary to what is commonly believed, unmarried couples do not have an automatic right to inherit their partner’s estate, unlike married couples. Cohabitation is yet to achieve legal recognition in the UK, and until it does, unmarried couples are left financially vulnerable on the death of their partner.”

In the absence of a Will expressly providing for an unmarried partner, an application to the Court seeking a financial award needs to be made within 6 months of the partner’s death. For a claim to succeed, the Court must be satisfied that the couple lived together as if married. Many factors are considered such as length of the relationship, emotional commitment, children and shared finances. It can be difficult for younger and newer couples to prove that they lived together as if married. If the claim fails or the time limit is not met, the deceased’s estate will pass to a spouse (if the deceased is not divorced from their ex-husband/wife) or pass to blood relatives under current succession rules.

Lindsay also added, “I would strongly advise unmarried couples to either make a Will or review their current Will to provide for partners on death. Couples should also check nomination forms for their pension and death in service benefit, and not make assumptions about who will inherit these. This is the only way unmarried couples can ensure financial security on death under current rules.”

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