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What rights do same sex couples have?

The Civil Partnership Act 2004 provides equality for same sex couples after bereavement. The Act ensures that the surviving partner of a same sex couple is treated in law in the same way as a spouse.

If one partner dies, the survivor is entitled to bring a claim for financial provision against the estate under the Inheritance (Provision for Family and Dependants) Act 1975.  The claim can be brought if the deceased’s will or intestacy does not make reasonable financial provision for their civil partner. The level of provision is the same as for spouses.

However the position is different for unregistered same sex couples. What they are entitled to claim is limited to “reasonable provision for maintenance”. Also, a child that was treated by them as being a child of the family has no entitlement to apply.

There is a deliberate and marked distinction between provision for those who have registered as a civil partnership and those who have not. In the same way, heterosexual couples who cohabit rather than marry are treated less favourably under the Act than couples who marry.

A final note of caution for same sex couples: entering into a civil partnership, like marriage, revokes a Will (unless that Will was prepared in contemplation of the civil partnership).

What are the time limits?

Where a claim is brought under the Inheritance Act 1975 a claim must be brought within 6 months of the date of the Grant of Probate.  Claims can be brought out of time – the Court will have regard to all the circumstances including the length of time itself, the reasons for the delay, how promptly the application has been made for leave once the right to claim has been discovered, whether there have been negotiations within the time limit and whether there has been distribution of the estate.  Claims about the validity of a Will do not have a time limit but ought, for obvious reasons, to be brought before the estate has been distributed.

When can a claim be made?

• When someone dies leaving a Will that excludes a person expecting to benefit from it.

• When someone dies without leaving a Will resulting in members of the family not benefiting from the estate.

• When a Will results in the distribution of the estate contrary to the apparent wishes of the deceased.  A claim may be possible against the professional adviser who prepared the Will (professional negligence).

• When there is evidence that the Deceased’s Will was made under duress or they lacked the mental capacity to make it.

• Where no provision has been made for someone despite a promise by the deceased that they will benefit (proprietary estoppel).

How much will it cost?

There is a myth that anyone involved in a contentious probate or Inheritance Act claim does not need to worry because all the legal costs will be met out of the deceased’s estate.  This is wrong.

If you win, the general rule is that costs “follow the event” so your opponent should pay your costs.  But in any litigation you must be prepared to face the fact that you could be responsible for not just your own legal costs but those of your opponent if you are unsuccessful.  This is why it is so important that you get the right advice from a specialist in this area of law.

We can investigate your funding options: –

a) You may have legal expenses insurance (perhaps hidden in the small print of a buildings or contents insurance policy) which will cover your legal costs.

b) We may be able to act for you on a “no win no fee” basis. As these cases can be complex and evidence in support needs to be obtained, we may recommend that we carry out a fixed fee investigation into the merits of the case before we can offer a no win no fee agreement.  Depending on the circumstances, the cost of an initial investigation is usually capped at £1,500.00 including VAT (i.e. we will agree not to exceed that amount and it may be less).

c) You can instruct us to act for you privately on a pay as you go basis. We are happy to discuss capping costs (agreeing an amount that we won’t go beyond), or fixed fees for certain stages of work.

We understand that you will be anxious about legal costs.  We are clear and up front about costs and keep you regularly informed.  For a free no obligation initial discussion please contact us on 0843 289 4640.