Your legal rights to provision from the estate of a co-habitant

Legal advice for farmers

It is important for a co-habitant to act promptly to avoid being statute barred, if applying for an order for provision out of the net estate of the deceased. Picture: iStock

Under the Civil Partnership and Certain Rights and Obligations of Co-habitants Act 2010, it is now possible for a person who claims to have been in an intimate co-habiting relationship with a deceased person to make an application to the court for financial provision to be made out of the estate of the deceased.

Proceedings can be brought to the High Court or Circuit Court.

The court only has jurisdiction if each of the co-habitants was ordinarily resident in the State throughout the one year period that ended on the date of death.

A claim may be made by the applicant provided the relationship has not ended two years or more before the death of the deceased co-habitant, save for some exceptions.

The 2010 Act applies only to relationships of five years or more, in any other case.

It has also been clarified that the legal concept of living together does not require two persons to live physically at all times in the same shared premises.

The court has provided examples of where either work demands of one or other, or ill-health and hospitalisation require couples to live physically apart in different places or even different countries for periods of time.

In determining whether two adults are co-habitants, the court will look at a variety of factors, for example, the duration of the relationship, the basis on which the couple lived together, whether there are dependent children, the degree to which the adults present themselves to others as a couple, the degree of financial dependence, etc.

On finding that an applicant is a qualified co-habitant, the court then is empowered to make proper provision.

If they are satisfied that proper provision was not made for the applicant during the lifetime of the deceased, the court will also have regard to the rights of any other person having an interest in the estate, and is also entitled to refuse to make an order if it would, in all the circumstances, be unjust to disregard certain conduct of the applicant.

Where the relationship ended before the deceased’s death, the court also cannot make an order if it is not satisfied that the applicant was financially dependent on the deceased, or if the applicant has married or entered into a civil partnership.

In the case of DC versus DR, the deceased left no children, and died intestate (left no will), and there was no evidence that the deceased’s siblings were financially dependent on him.

The applicant had given up a modest position as a cook which she held for 15 years, and she was not in a position to buy a house for herself, and would require one for the future.

The court also inferred that she had made contributions to the household, and that the deceased had made no provision for her during his lifetime.

In the circumstances, the court concluded that proper provision for the applicant would be the house in Dublin where the applicant and the deceased resided prior to his death.

Many of the decisions that have come before the courts have involved intestacy (where there is no will).

It remains to be seen what will happen when a deceased makes a will, and makes a conscious decision not to include a qualified co-habitant in their Will, or a qualified co-habitant feels that they were insufficiently provided for.

A qualified co-habitant may, after the death of his or her co-habitant, but not more than six months after the grant of representation is first granted under the Succession Act 1965 in respect of that co-habitant’s estate, apply for an order under this section for provision out of the net estate, so it is important to act promptly to avoid becoming statute barred.