In England and Wales, plans to grant intestacy rights to unmarried partners may disrupt a system founded on well-defined legal standings. As family structures have undergone significant changes in recent decades, with more couples opting for long-term cohabitation, sometimes with children, proposals to extend automatic intestacy rights to cohabiting partners are intended to reflect modern social realities and address situations where a surviving partner may otherwise receive nothing from an estate.

The objective is understandable. However, there is a real question whether reform in this area would solve more problems than it creates and decisions should not be made in haste. Rushing into reforms could backfire. The core issue is that current intestacy rules rely on straightforward legal definitions, while cohabitation often lacks clear boundaries. Few would dispute the shift in family life, with many couples choosing non-marital cohabitation, prompting proposals to extend automatic intestacy rights to cohabiting partners. This shift might lead to more legal ambiguity, disputes, and strain on the courts.

A further question is whether there is a demand for change. Many couples intentionally avoid marriage, and they already have alternatives-like wills or trusts-to secure their partner’s future without tying the knot.

A frequently discussed approach is a “marriage-equivalence” test, under which a surviving partner would need to show that they lived in the same household as the deceased and were in a relationship equivalent to marriage or civil partnership for a prescribed period. That has a degree of attraction because it builds on concepts already familiar to practitioners through the Inheritance (Provision for Family and Dependants) Act 1975.

The difficulty is that such a definition appears clearer in theory than in practice. Courts dealing with claims under the 1975 Act undertake a detailed examination of the evidence, considering factors such as shared residence, financial interdependence, mutual commitment and how the relationship was presented to family, friends and the wider world. No single factor is decisive. Instead, judges conduct a holistic assessment of the relationship.

This method only works because courts are designed to resolve disputes. Intestacy laws, however, function by providing a default distribution without deep investigations. Adding a category that demands personal relationship evaluations could weaken that predictability.

In practice, who would decide whether a person qualified? Personal representatives are unlikely to welcome the prospect of making sensitive judgments about the nature of the deceased’s relationships. Where family members disagree, the issue may ultimately require judicial determination, potentially increasing probate disputes rather than reducing them.