Cohabiting Couples

22 August 2016

The Importance of Making Wills

Cohabiting Couples

Under the current laws of England and Wales there is no provision if you die without making a valid Will for a partner. The laws relating to the distribution of the estate where you do not have a valid Will in place is known as the laws of intestacy. The laws of intestacy were first introduced in 1925 and made provision for married couples and children and other family relatives. There was no automatic provisions however this was not surprising due to the year it was enacted.

What some people may find unusual is that the laws of intestacy were recently updated in 2014 but still make no provision for unmarried couples. Therefore without a Will the surviving partner will not receive anything.

There is a general misconception that there is such a thing as a “common law marriage” and partners living together have the same rights as a married couple. Irrespective of the length of the relationship the law does not provide any protection for unmarried couples on death.

When assets are owned jointly they may pass by survivorship is they are owned as joint tenants. This means they will automatically pass without reference to the laws of intestacy. Problems arise where a couple’s home is owned as tenants in common or in the sole name of one partner. Without a Will, on the death of the property owner, the surviving partner has no right to live in the property. However, with correctly drawn up Wills provision could have been made for the surviving partner to live in the property or a gift of the property to be made.

Another complication to consider is where partners have their own children from a previous relationship. Without a Will and under the Intestacy rules, the Estate could pass directly to their children, leaving the surviving partner with no Inheritance.

A further issue to highlight is when an unmarried partner has previously married but never divorced or updated their Will. A recent case which involved an elderly couple who planned to update their Wills as part of their retirement plan but resulted in the surviving partner spending tens of thousands of pounds in legal fees and a 4 year court battle to achieve her partners’ wishes.

It is possible for the surviving partner to make a claim against the estate under The Inheritance Provision for Family and Dependants Act 1975 if they were being maintained by the deceased and lived as husabdn or wife 2 years prior to death. Making this type of claim can cost unnecessary legal fees and will not provide a guarantee. The court will make a judgement based on a number of factors which need to be considered such as the age of the person, the duration of the relationship, the future potential to obtain their own income and many others.

The only way to ensure that an unmarried partner receives what you want them to receive is to have a Will prepared and signed correctly.

The laws surrounding cohabiting couples needs to be reviewed because such a large number of couples who have families choose not to marry. The Cohabitation Rights Bill was brought into parliament in 2013 but as of yet has failed to be enacted. We therefore cannot stress enough the importance of making a Will to protect themselves and their families in the future.

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