From today's Solicitor's Journal
The Law Commission is pressing
on with a plan to give long-standing cohabitants the same rights as married
couples on intestacy.
In its final report on intestacy and family
provision, published this morning, the commission was keen to distinguish
its recommendations on intestacy from its proposals to give cohabitants a
share in their partner’s property on
separation, which the
government has decided not to take forward in this parliament.
Professor Elizabeth Cooke, the law commissioner leading the project, said
there was a difference between a relationship that had ended and “a
committed relationship which is still going on”.
The commission
recommended that cohabitants who have lived together for at least five
years should be entitled to their former partner’s estate under intestacy,
just like a surviving spouse.
Where there are children, the commission
said the qualifying period should be reduced to two years.
Professor
Cooke said the two-year period was the same as the minimum for cohabitants
wanting to make dependency claims under the Fatal Accidents Act.
Lord
Justice Munby, chairman of the commission, admitted that the two and
five-year limits were in some ways arbitrary, but should be seen as a
“proxy for commitment”.
He said: “The two most obvious proxies are
children and duration.”
Professor Cooke said that other common law
systems had financial remedies for cohabitants on intestacy and
cohabitation was becoming an
“accepted family form”.
In its report, the commission argued that its
proposals maintained the primacy of marriage and civil partnership and only
applied where the deceased was not in either kind of relationship.
The
commission added that some people believed the qualifying periods should be
shorter than two or five years but had rejected this because of the
“concern that automatic inheritance rights should only be given to those in
a settled relationship”.
Professor Cooke said the commission’s
suggested reforms on intestacy for married couples and those in a civil
partnership would make the law “simpler, less technical and
problematic”.
The main change is abolition of the spouse’s life
interest in larger estates, where the value of the assets exceeds the
statutory legacy. The legacy is set at £250,000 for married couples with
children and at £450,000 for those without.
Under the current
intestacy rules, the remainder of the estate is shared equally between the
spouse and relatives, with the spouse getting a life interest in half of
it.
Under the commission’s regime, where there were no children, the
spouse would get everything. The parents of the deceased, or the siblings
where the parents were already dead, would get nothing.
Where there
were children, the spouse would get half the remainder absolutely, with the
children or other relatives getting the other half.
Lord Justice Munby
said intestacy was something that many people had to deal with on their
own, without legal assistance.
He said that since lawyers have to be
involved where there is a life interest, removing the need for this “could
be advantageous in terms of efficiency and saving cost” at a time of
emotional stress.
“Intestacy law is optional,” Professor Cooke added.
“The best way to avoid it is by making a will.”
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