Cohabitation: What is yours if your partner passes away?

Last week the Supreme Court gave judgment in favour of a Claimant who sought provision under the pension scheme of her deceased cohabitee. In summary, the couple were only engaged for two days before the untimely death of Mr McMullen. Unfortunately, Mr McMullen did not nominate Ms Brewster so as to make her eligible to receive a survivor’s pension in the event of his death, and Mr McMullen had been paying into this Local Government Pension Scheme for approximately 15 years. As they were not married, Ms Brewster did not have any ‘automatic’ right to the pension and so was excluded by way of not having been nominated under the Local Government Pension Scheme 2009 Regulations.

The High Court in Northern Ireland did find that those regulations were incompatible with the European rights prohibiting discrimination and promoting peaceful enjoyment of possessions. Whilst this was reversed by the Court of Appeal on appeal by the Respondents in the case, the equivalent regulations in England, Wales and Scotland were amended following the NI High Court decision and the need to nominate was removed. Subsequently, the appeal was re-opened and the UK Supreme Court unanimously declared that the provisions that she need to be nominated was dis-applied.

Whilst the legislation has now been changed, so the need to nominate is no longer necessary, someone who is not married to their partner can still often face significant problems in respect of any inheritance they can expect to receive. Fortunately, the Inheritance Act 1975, does allow for someone in this position to make a claim against the estate of their recently deceased partner. In 1996, legislation was amended to allow Cohabitees to make claims more easily than ever before, with them now being able to claim that the estate does not provide ‘reasonable provision’ for them. To make the claim, the following must be met:-

1. The cohabitants were, for the two years immediately preceding the death, living together in the same household as spouses/civil partners; or
2. If they were not living together, that they were maintained (wholly or partly) by the deceased.

It should be noted that this relationship element does not necessarily require a sexual relationship and is based on a range of relationships. Claims can also be made on behalf of a child of a deceased cohabitant (including a child unborn at the date of death). Claims have also been known to include declarations of beneficial interests in property. In the case of Negus v Bahouse, the son and first Wife of the deceased were granted probate and they issued proceedings for possession of the property which the cohabitant was living in. She had given up work to be a housewife for the deceased and fell within the provisions of the Act. The Court granted her the property without the encumbrance of a mortgage and the sum of £240,000. It is possible to ‘declare’ an interest in your property for a loved one, even if you are not married, and we are readily available to assist with this.In summary, the grounds for bringing a claim and the circumstances to be considered exceed the parameters of this article and so it is always advisable to discuss any prospective claims with an experienced professional. Similarly, ensuring that a properly drafted Cohabitation Agreement is in place to avoid any problems should you separate, is also something that our team can assist with.