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Surviving Spouses & Cohabitants: Ensuring Fair Provision Is Made In Challenging Circumstances

Coping with the loss of a life partner is an immensely challenging experience, even more so when the deceased’s Will does not sufficiently provide for the surviving partner. Such circumstances are becoming more prevalent, as estate planning becomes complicated when there are children from prior relationships involved.

There is a delicate balance between the wellbeing of the surviving partner and safeguarding the interests of biological children. These interests will often compete if the children have expectations of inheritance now, but a surviving partner’s wish to maintain their home and financial security remains dependent on the deceased’s assets post death.

How do disputes arise?

When estate planning you may be familiar with the concept that everyone in this country has testamentary freedom. This means a person is at complete liberty to decide who will receive some or all of their estate when they die, even if this means excluding close family members or dependents. This stands in contrast to our immediate neighbours in France who do not have this right and where the principle of “forced heirship” applies, prohibiting a French individual from excluding specific close family members from inheritance through their Will.

However, parliament recognised that the principle of testamentary freedom sometimes led to situations where certain family members or dependents are left without sufficient financial provision, especially if their needs were not adequately considered by the deceased in their Will. Some examples of cases we have advised on this year include:

  • A family in turmoil when the deceased had stipulated in his Will that his surviving spouse was to have just one year to remain in their jointly owned property after his passing. After the year elapsed, the deceased’s portion of the property was to be inherited by his children from a previous relationship. The surviving spouse could not afford to buy out the children’s share of the property. The surviving spouse made a successful claim against the deceased’s estate.
  • An adult child was left without support when her mother’s Will left everything to her spouse who was not agreeable to supporting the adult child in the way in which her mother had during her lifetime. The deceased had financially supported her adult child by paying mortgage payments and various other living expenses and continued to do so up until her death. The adult child was unable to afford her mortgage repayments after the passing of her mother. The adult child made a successful claim against the deceased’s estate.
  • A couple were in a long-term relationship when one of them passed away. They never married and the deceased never drafted a Will. Under the rules of intestacy, the surviving partner did not inherit any of the deceased’s estate. The surviving partner felt this was very unfair given that their assets were amassed due to their collective efforts over the course of their long and committed relationship. The surviving partner made a successful claim against the deceased’s estate.

What can be done?

The Inheritance (Provision for Family and Dependents) Act 1975 was introduced to provide a legal framework that allowed certain categories of individuals, such as spouses, cohabitants, children, and dependents, to make claims for reasonable financial provision from the estate of the deceased, if they were not adequately provided for in the Will. The 1975 Act tries to strike a balance between honouring a person’s testamentary freedom and ensuring that those who are in genuine need are not left without reasonable financial support after the death of a family member or those on which they were dependent.

It is the intersection between the principle of testamentary freedom and the 1975 Act where legal challenges to estates can be successful and enforced through the courts. The courts have the power to adjust a deceased’s estate to ensure certain categories of people are provided for.

Claims made by partners who have been disinherited or insufficiently provided for are the strongest types of claims brought under the 1975 Act, particularly if the circumstances mean that the surviving partner will be forced to move out of their home. Even if those property assets are placed into a trust for the surviving partner’s lifetime, this may still not be enough to provide for that individual for the remainder of their life.

Seeking legal advice when writing your Will is not only wise, but essential. Our private client team at Morr & Co has the expertise to guide you through these legal complexities. Additionally, we have a team of specialist contentious trust and probate practitioners who are dedicated to assisting individuals through difficult times and advising on where challenges to estates may originate.

If you have any questions or would like any further information on the content of this article, please do not hesitate to contact our Contested Trusts and Probate team, who will be happy to help.


Although correct at the time of publication, the contents of this newsletter/blog are intended for general information purposes only and shall not be deemed to be, or constitute, legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article. Please contact us for the latest legal position.

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