Are the government’s law reform advisers undermining marriage by proposing intestacy benefits for cohabitants? Or is the Law Commission simply trying to save money?
Most readers of this blog will know that there is no such thing as a “common-law spouse”. However, people who live together as a couple, but who are not married or in a civil partnership, can – and should – make wills to ensure that the survivor receives on death whatever the first-to-die regards as appropriate. That is because an unmarried or unregistered cohabitant will not receive a legacy under the intestacy laws, which govern what happens when someone dies without leaving a valid will.
What’s perhaps less well known is that the survivor of unmarried or unregistered cohabitants who have been living together “as man and wife” or ”as civil partners” for at least two years immediately before one of them dies can claim reasonable family provision under the Inheritance (Provision for Family and Dependants) Act 1975. But that may require legal action and will certainly involve paying for lawyers.
So the Law Commission is provisionally proposing that the law should say what many people think it says already. The survivor of two cohabitants would receive the same as a surviving spouse if the couple had lived together for at least five years before the death. If they had cohabited for less than five years but more than two years, the survivor would receive half. If they were the parents of a child, there would be no minimum duration requirement.
Back to my question: does this undermine marriage? The Law Commission says not: are people really not going to get married if what is now discretionary becomes automatic? Maybe not. But I suspect it will undermine will-writing.