Intestacy laws being brought into the 21st century

The UK intestacy laws are found in the Inheritance (Provision for Family and Dependants) Act 1975 (1975 Act) and allow certain family members and dependants to claim against the deceased’s estate if the deceased died intestate or they have not been provided for under a Will. However, the provisions do not address the change in the average family make-up, and this has led to proposals from the Government and Law Commission to reform this area of law. Two draft bills have been proposed to address this problem, the Inheritance and Trustees’ Powers Bill and the Inheritance (Cohabitants) Bill.

The Inheritance and Trustees’ Powers Bill looks to make wide ranging changes including the following:

• increasing the entitlement of a surviving spouse;
• reducing the burden on dependants to prove the key conditions for making a claim (i.e. that (a) the deceased had assumed some financial responsibility for their maintenance; and (b) the deceased had contributed far more to the relationship financially than the dependant making the claim);
• removing an anomaly which prevents a child who has been adopted after the death of a parent from making a claim against the estate of that deceased parent after the adoption has taken place; and
• protecting fathers who are named on the deceased’s birth certificate.

However, it is the Inheritance (Cohabitants) Bill (currently undergoing a first reading before the House of Lords) which may be seen to have the greatest impact on society as it focuses on the entitlement of a surviving cohabitee.

Under this new bill, unmarried cohabitees will be allowed to benefit from the deceased’s estate provided that they have lived together for the five years prior to the date of death of the deceased. In circumstances where the cohabitee and deceased have a child who was living in the same household at the deceased’s date of death, the cohabitee will only need to show that he or she had been living with the deceased for two years. This is an important change and will update the intestacy laws significantly.