Part of: Cohabitation Agreement
The Inheritance Act 1975 lets close family and dependants ask a court in England and Wales for money from an estate. It applies when a will, or the rules for dying without one, leaves them without reasonable financial provision. Its full name is the Inheritance (Provision for Family and Dependants) Act 1975. It matters most to people the law can otherwise overlook, such as unmarried partners, because the intestacy rules give nothing to a partner who was not married or in a civil partnership (Administration of Estates Act 1925, s.46). That is also why couples who live together often read our guide to a cohabitation agreement.
If you are reading this after a loss, the legal side can feel like one weight too many. This guide explains who can claim, what the court weighs, the six-month time limit and how divorce changes the picture. It covers England and Wales only and gives general information, not advice on your own situation.
Reviewed by: Iblal Iqbal, Partner & Family Law Strategist, Kabir Family Law
Key takeaways
- Who can claim. A spouse or civil partner, an ex who has not remarried, a partner who lived with the person for two years, a child, a child of the family, or anyone the person was supporting (s.1).
- Two standards. A surviving spouse can receive what is reasonable in all the circumstances. Everyone else is limited to what they reasonably need to live on (s.1(2)).
- Six months. A claim should start within six months of the grant of probate or letters of administration. After that, you need the court’s permission (s.4).
- Divorce matters. When a marriage ends, a court can order that one ex-spouse cannot claim against the other’s estate (s.15).
- No fixed share. The court weighs needs, resources, the size of the estate and conduct before it decides anything (s.3).
What is the Inheritance Act 1975?
The Inheritance Act 1975 lets a judge change who receives money from an estate, but only for people on a set list. It does not ask whether a will is valid. Instead, it asks whether the will, or the intestacy rules, give the person claiming a reasonable level of financial support.
So you can accept that a will is genuine and still bring a claim. By contrast, an attack on the will itself, for example because someone pressured the person who made it, is a different kind of case. Also, the Act only applies if the person who died had their permanent home, or domicile, in England and Wales (s.1(1)).
If the court agrees that the provision is not reasonable, it can order a lump sum, regular payments or a transfer of property (s.2). It can even treat the share of a jointly owned home that passed straight to a co-owner as part of the estate, to the extent that is just (s.9).
Who can claim under the Inheritance Act 1975?
Section 1 sets out six groups of people who can apply. If you fall outside all six, you cannot use the Act, however unfair the will feels. The table below helps you see where you might stand, but it is a starting point rather than a final answer.
| Who | Who counts | What the court can award |
|---|---|---|
| Spouse or civil partner | Married to, or in a civil partnership with, the person when they died | What is reasonable in all the circumstances, not just living costs (unless a judicial separation was in force) |
| Former spouse or civil partner | An ex who has not married again or formed a new civil partnership | Living costs only |
| Cohabiting partner | Lived in the same household as a couple for the whole two years before the death | Living costs only |
| Child | A child of the person who died, of any age | Living costs only |
| Child of the family | Someone the person who died treated as their own child, such as a stepchild | Living costs only |
| Dependant | Anyone the person who died was substantially supporting, fully or partly, just before the death | Living costs only |
The law calls the living costs standard “maintenance”. It does not mean the bare minimum. Rather, it covers the cost of daily life at a level that fits your situation. Even so, it is not a way to share in wealth for its own sake.
Can a cohabitee make an Inheritance Act claim?
Yes, if you lived with your partner as a couple for the whole two years before they died (s.1(1A)). This matters because living together does not give you the rights of a married couple. Our guide to the common law marriage myth explains why.
If your partner died without a will, you get nothing under the intestacy rules, even after many years together. For many partners, a cohabitee claim under the Inheritance Act 1975 is the main route to support from the estate. However, a home you owned jointly can pass to you in a different way, depending on how you held it. If you lived together for less than two years, you may still claim as a dependant, but only if your partner was making a substantial contribution to your needs (s.1(3)).
The court then looks at your age, how long you lived together and what you gave to the family, for example by caring for the home or the children (s.3(2A)). Meanwhile, if you are both still here, making wills and writing down how you share money and property can spare a surviving partner this kind of dispute. If you separate instead, our guide to property rights when unmarried couples split up covers the family home.
Can an ex-husband or ex-wife claim after divorce?
Sometimes. A former spouse or civil partner can claim if they have not married again or formed a new civil partnership. In practice, though, a financial settlement can close this door. When a court deals with a divorce, it can order that one of you cannot claim under the Act against the other’s estate (s.15).
A clean break settlement can include that bar. For that reason, it is worth finding out whether your financial consent order includes it. If it does, the court will not hear a later claim from that ex-spouse.
Timing also matters. Suppose your ex dies within 12 months of the final divorce order, and you had not applied for a financial order or your claim was still going on. In that case, the court can, if it thinks it just, treat you as if you were still married (s.14). And if your spouse dies before the final order, you are still a spouse in law, so the wider spouse standard applies.
Separately, a final divorce order does not cancel a will. Instead, the law deals with any gift to the ex in that will as if the ex had died on the date of the final order, unless the will says otherwise (Wills Act 1837, s.18A). If you are dividing money you have inherited, rather than claiming it, see our guide to how inheritance is treated in a divorce.
Can adult children make an Inheritance Act claim?
Yes. The Act covers a child of the person who died at any age, so an adult son or daughter can apply. However, an adult child who can earn a living often finds the claim harder. That is because the court only awards what is reasonable to live on, and it gives weight to what the parent wanted.
The leading case is Ilott v The Blue Cross [2017] UKSC 17. There, a daughter had been left out of her mother’s will. The Supreme Court restored the award the first judge made, yet it also stressed that her claim was limited to living costs and that her mother’s wishes counted. Real financial need, a disability or a responsibility the parent took on can all be relevant (s.3).
What does the court weigh before it decides?
The judge makes two decisions. First, did the will or intestacy fail to make reasonable provision for you? Then, if it did, what order should the court make? For both questions, section 3 lists the same factors (s.3):
- your money and needs, now and in the near future;
- the money and needs of any other person claiming, and of the people who inherit;
- any duties the person who died had towards you or towards someone who inherits;
- the size and type of the estate;
- any physical or mental disability;
- anything else that is relevant, including how anyone has behaved.
For a surviving spouse, the court also asks what you might have received if the marriage had ended in divorce instead. Even so, that figure is only a cross-check, not a ceiling or a floor. So the thinking behind divorce settlements can shape the result.
What is the Inheritance Act claim time limit?
An Inheritance Act 1975 claim should start within six months of the date the Probate Registry issues the grant of probate or letters of administration (s.4). You can also start before the grant exists. After six months, you need the court’s permission, and the court does not give it automatically.
Waiting is also risky. Once six months have passed, the executors or administrators can share out the estate without personal risk from a later claim (s.20). As a result, money you hoped to claim may be much harder to reach.
If you do not know when the grant will issue, you can enter a standing search with the Probate Registry, which tells you when a grant appears (Non-Contentious Probate Rules 1987, r.43). A caveat is a different tool. It stops a grant while there is a dispute about the will, and it can lead to legal costs (GOV.UK).
How does an Inheritance Act claim work, step by step?
Every estate is different, so treat this as an outline of the usual stages rather than a checklist to follow alone. Claims follow the court rules in Part 57 of the Civil Procedure Rules.
- Check that you can claim. Match yourself to one of the six groups in section 1, and look for any divorce order that might bar you.
- Diary the deadline. Find out whether a grant has issued, then work out the six-month date (s.4).
- Gather the facts. Keep proof of your finances and your bond with the person who died. If you were partners, also keep proof of the two years you lived together.
- Write to the estate. A letter of claim to the executors or administrators sets out your case, and they reply. The courts expect both sides to swap enough information to try to settle before anyone starts a claim (Practice Direction on Pre-Action Conduct).
- Try to settle. Talks or mediation can end a claim without a hearing.
- Go to court if talks fail. A judge then decides, using the section 3 factors.
Costs can be high. The general rule is that the losing side pays the winning side’s costs, although the court can order something different (CPR 44.2). That is why it helps to know early whether a claim is realistic.
A list like this cannot tell you whether your needs are strong enough to justify a claim, or how a judge might weigh them against the needs of the people who inherit. Those are the calls a checklist cannot make for you, and they are what a free initial consultation is for.
Frequently asked questions
How successful are Inheritance Act claims?
There is no single success rate, because each claim turns on its own facts and the section 3 factors. A spouse is judged against a wider standard, so a spouse or a partner in real need often has a stronger case than an adult child with a steady income. Claims can also settle before a final hearing, for example through mediation.
Is the oldest child automatically next of kin?
No. Being the eldest gives no special standing when it comes to inheriting in England and Wales. If there is no will, the intestacy rules split the children’s share equally, whatever their age (Administration of Estates Act 1925, s.47). So the eldest child gets no larger share.
Can a stepchild claim under the Inheritance Act 1975?
Yes, if the person who died treated them as a child of the family. That covers a stepchild in a marriage, a civil partnership or any family where the person who died acted as a parent (s.1(1)(d)). The court then asks whether that person supported the child or took on responsibility for doing so, and for how long (s.3(3)).
Can I stop my ex claiming against my estate?
If you were married or in a civil partnership, you can ask the court for a section 15 order as part of your financial settlement. Unmarried couples have no such order. Still, an unmarried ex can only claim as a partner if you had lived together for the whole two years before you died, or as a dependant if you were supporting them.
Does the Inheritance Act 1975 apply in Scotland?
No. The Act only applies when the person who died had their permanent home in England and Wales. Scotland and Northern Ireland have their own rules, so the answer turns on where the person who died was domiciled.
Left out of a will, or worried about a claim? Get advice before the six-month deadline
The six-month limit runs from the grant, and a late claim needs the court’s permission, so it helps to understand your position while there is still time. Book a free initial consultation, where one of our specialists gives you initial advice tailored to your circumstances. If you live with a partner, you can also read about protecting each other with a cohabitation agreement.
Expert Tip
We are commonly asked whether a partner who lived with someone for years is protected when that person dies. Without a will, they are not. An unmarried partner inherits nothing under the intestacy rules, and a claim under the Act should start within six months of the grant. So if your partner has died, find out straight away whether a grant has issued. Then keep records of your shared home and money while the details are fresh.
Garry Steedman, Family Law Consultant (Divorce, Children & TOLATA)
