Beverley Morris and Co. Latest News News Common Law Spouse

The Common Law spouse after death

Beverley Morris and Co. Latest News News Common Law Spouse

You don’t have to say “I do” to be married was the original slogan for the 1963 film Common Law Wife in which a New Orleans stripper found a lawyer who argued that after 5 years she was a common law wife. However, there has been no legal concept of a common law spouse in England and Wales since 1753 and cohabiting partners have no common law rights equivalent to those of spouses.

There is one curious exception.

Cohabiting partners, Angharad and Benedict, live together for 20 years then break up without either having a claim on the assets of the other.

However, Carter and Demelza cohabit for just two years before Carter dies and Demelza has a claim against his estate.

In death the law recognises the cohabitee. This appears counter intuitive, for if in life there is no such thing as a common law spouse, how might the concept be brought into existence after death?

The Inheritance Act 1975 allows a surviving cohabiting partner to bring a claim for reasonable financial provision against his/her deceased partner’s estate provided they cohabited as if they were married for at least two years before death. The Act does not consider whether the claimant is morally entitled to bring the claim but whether or not the will (or the intestacy if there is no will) failed to make reasonable financial provision for the claimant.

Claims brought by spouses (including under the Marriage (Same Sex Couples) Act 2013), civil partners and some former spouses are brought for what it is reasonable for the claimant to receive whether or not it is for that person’s maintenance.

Claims by qualifying cohabitees are for such financial provision as it would be reasonable in all the circumstances of the case for the applicant to receive for his or her maintenance. Therefore the cohabitee does not have quite the same rights as a spouse.

Claims may also be brought by children of the deceased or those treated as such and by anyone maintained by the deceased. In many cases the court has to carry out a difficult balancing exercise.

Claims must be issued within six months from the date of the grant of representation to the estate.