Supreme Court finds in favour of cohabitee’s right to survivor’s pension

Thu 9th Feb 2017

The Supreme Court has found that a nomination requirement in the Local Government Pension Scheme (Benefits, Membership and Contributions) Regulation 2009 (“the Regulation”) which applies to cohabiting partners, but not to married couples or civil partners amounts to unlawful discrimination and should be dis-applied.

The case involved unmarried couple, Mr McMullan and Ms Brewster who had been cohabiting for over 10 years. Mr McMullan was a member of the Local Government Pension Scheme Northern Ireland (“the Scheme”). When he died unexpectedly in December 2009, the Scheme’s administrator refused to award Ms Brewster a survivor’s pension on the basis that it had not received Mr McMullan’s nomination form (in Ms Brewster’s favour). Crucially, the nomination requirement did not apply to married or civil partner survivors. Ms Brewster consequently argued that the application of the nomination requirement amounted to unlawful discrimination and applied for judicial review of the decision.

The Supreme Court found overwhelmingly in Ms Brewster’s favour holding that she was in fact entitled to receive Mr McMullan’s pension. The Court noted that the objective of the Regulation was to remove the difference in treatment between cohabitants and married or civil partners and referred to the nomination requirement as “highly questionable”.

Local government pension schemes in England and Wales and Scotland have already been revised to remove the nomination requirement and most private sector schemes in the UK already offer survivor’s benefits to unmarried partners. Nevertheless, the case indicates a move towards the acceptance of different family structures and the Law Society has described the decision as “a victory for equal treatment before the law for unmarried couples.”

Whilst the decision will be welcomed by many, other areas of law such as the intestacy rules and the inheritance tax provisions remain unchanged and continue to be perceived as considerably less favourable to unmarried couples. The intestacy rules only provide for married couples or civil partners meaning that cohabitees will have no automatic entitlement to their partner’s estate unless they have made a valid Will. Perhaps most significantly, the case involving Mr McMullan and Ms Brewster acts as a stark reminder of the importance of estate planning. Individuals should ensure that they seek advice from a qualified solicitor and have in place a valid Will to ensure that their assets are distributed according to their wishes.

Marilyn Bell, Head of Family Law at SA Law adds ‘Pensions can even be problematic for married couples, and so can what is known as ‘Death in Service’ Often employers pay a sum on death of say 4 x salary. Spouses expect it to come to them, but that may not even be the case. Employers have discretion. If a married couple are in divorce proceedings but haven’t yet got to the stage of sorting out finances, and one dies, the widow or widower can find the death in service is paid to another member of their spouses family.'

CONTACT CATHERINE

If you would like more information or advice relating to this article or any Wills, Trusts or Probate matter, please do not hesitate to contact Catherine Robson on 01727 798026.

© SA LAW 2024

Every care is taken in the preparation of our articles. However, no responsibility can be accepted to any person who acts on the basis of information contained in them alone. You are recommended to obtain specific advice in respect of individual cases.

Read our views & insights
SA Law has earned the loyalty of clients thanks to its 'positive, friendly and approachable' attitude.
Chambers & Partners
Red and yellow leaves, blue sky SA Law
Views & Insights
Navigating the Digital Afterlife

In a recently published article, Penelope Samuels discusses the inadequacies of the current legal framework around the need for legislation…

Read More
SA Law Employment Laptop
Views & Insights
Document preservation and the 'Wagatha Christie' case

The duty to preserve documents in litigation is taken very seriously and any gaps in the evidence that are disclosed will be thoroughly interrogated,…

Read More
SA Law Red Mug Coffee
Views & Insights
Challenging a Will? - What's New?

Will Disputes Solicitor Clare Mackay explains the four main grounds for challenging a will in the UK and what can be learnt from recent reported cases.

Read More
SA Law Wills trusts and probate red leaves
Views & Insights
Will and probate disputes - FAQs

A helpful guide to common contentious probate will dispute questions.

Read More
SA Law Wills trusts and probate red leaves
Views & Insights
On what grounds can I challenge the validity of a will?

There are a number of arguments that you may be able to run to challenge the validity of a will, which are mainly:The will has not been properly executed…

Read More
Red and yellow leaves, blue sky SA Law
Views & Insights
Forged will allegations in a £35m estate

Clare Mackay and Amy Riddick consider the implications of a recent case where the authenticity of a will was questioned

Read More
Red and yellow leaves, blue sky SA Law
Views & Insights
Own a business or property abroad? Important factors to consider when making a Will

Wills, Trust and Probate expert, Tahsin Chasmawala, explains what should be considered when writing your Will

Read More