Inheritance (Provision for Family and Dependants) Act 1975: Cohabitees vs Spouses

When a relationship ends with the death of one partner, the survivor may find that a Will or the intestacy rules do not provide adequate financial support. In such circumstances, the Inheritance (Provision for Family and Dependants) Act 1975 (“the 1975 Act”) allows certain individuals to bring a claim against the deceased’s estate.

However, the Court approaches these claims very differently depending on whether the claimant is a spouse or civil partner or a cohabiting partner.

The Inheritance (Provision for Family and Dependants) Act 1975

The 1975 Act enables individuals who fall within specific categories to apply to the Court for reasonable financial provision from an estate where the Will or intestacy rules fail to make such provision.

Under section 1(1)(a) of the Act, a surviving spouse or civil partner is automatically entitled to bring a claim if reasonable financial provision has not been made for them.

In contrast, section 1(1A) applies to cohabitees. A cohabiting partner may bring a claim if, for the two years immediately before the deceased’s death, they:

• Lived in the same household as the deceased; and
• Lived together as if they were a married couple or civil partners.

If these criteria are met, the cohabitee may also apply for reasonable financial provision under section 2 of the Act.

Key Legal Distinctions Between Spouses and Cohabitees

Claims by Spouses and Civil Partners

When a surviving spouse or civil partner brings a claim under the 1975 Act, the Court considers what is reasonable in all the circumstances. Importantly, the award is not limited to maintenance (section 1(2)(a)).

In Re Krubert, Deceased [1977] 2 FLR 395, the Court confirmed that a surviving spouse may receive substantial capital provision reflecting their marital status, rather than being restricted to income or basic living expenses.

A common starting point in these cases is the so-called “divorce cross-check”, which considers what the spouse might have received on divorce. While this often results in a broad starting point of around 50% of the estate, the courts have repeatedly emphasised that this is “neither a ceiling nor a floor”.

More recently, in Kaur v Estate of Karnail Singh & Ors [2023] EWHC 304 (Fam), Peel J reaffirmed that a surviving spouse should not ordinarily be worse off as a widow than they would have been as a hypothetical divorcee.

Claims by Cohabitees

By contrast, claims brought by cohabiting partners are assessed on a much more limited basis. The Court will consider what is reasonable for the claimant’s maintenance only.

Although the 1975 Act does not define “maintenance”, it generally includes:

• Housing needs
• Income requirements
• Day-to-day living expenses

Awards to cohabitees are strictly limited to maintenance, and the Court will usually not make provision beyond this.

That said, the courts have shown some flexibility when assessing whether the statutory two-year cohabitation requirement has been met. In Kaur v Dhaliwal [2014] EWHC 1991 (Ch), the claimant had lived with the deceased for one year and 49 weeks—just short of the two-year threshold—but was still permitted to bring a claim.

In other cases, the courts have accepted that cohabitation may exist even where the parties were not living under the same roof continuously during the two-year period.

Other Key Considerations

When determining a claim under the 1975 Act, the Court must balance:

• The value of the estate
• The financial needs and resources of all claimants
• Competing claims from other beneficiaries

Where there are multiple claims, even a spouse’s or cohabitee’s claim may ultimately be limited by a needs-based assessment of the needs of others who should be provided for in the Estate.

For this reason, it is vital that anyone seeking to bring or defend a claim under the 1975 Act sets out the full extent of their financial position and legal arguments at the earliest possible stage.

Expert Advice on 1975 Act Claims

Howes Percival’s specialist Contentious Trusts and Probate team has extensive experience in advancing and defending claims under the Inheritance (Provision for Family and Dependants) Act 1975.

If you would like advice on making or defending a claim against an estate, please contact our team for tailored guidance.

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