The Act allows certain categories of claimant to make a claim against the estate of a deceased where 'reasonable financial provision' has not been made for them under either the deceased's will or rules of intestacy. Although there are no reported cases directly on the point of a pre-nuptial agreement entered into by a spouse limiting a claim, this issue has been considered by the Law Commission in its recent consultation paper on marital property agreements, which may become relevant to both pre-nuptial agreements and claims under the Act.
The Commission has suggested that the Act be amended so as to give cohabitants a claim that is not limited to maintenance, thereby equalising the position between spouses and cohabitants. However, earlier recommendations made by the Law Commission in relation to cohabitant rights have not been introduced. Julia and Sian recommend that practitioners should keep in mind the current provisions when drafting cohabitation agreements where issues relating to a possible future claim under the Act arise until the Law Commission publishes its report and it becomes clearer whether a change in the current legislation will be introduced.