Cohabiting couples don’t need a Will – right?
Posted on 10th November 2022 at 09:52
So, you live with your partner and have a family together, so when you pass away everything will pass to your partner even though you are unmarried, right?
Wrong! It is a common misconception that cohabiting, unmarried couples have the same rights as married couples whereby everything will automatically pass to their spouse if they die without leaving a Will.
Cohabiting couples are not afforded the same rights as married couples no matter how long-term the relationship has been, and there is no such thing as a ‘common-law marriage’.
What happens when my partner passes away and we are unmarried?
If you or your partner pass away without a Will, the estate will be distributed in accordance with the intestacy rules. This means that the estate will be inherited by close relatives in order of priority beginning with children (not including stepchildren), parents, siblings, half siblings, grandparents, aunts and uncles, and so forth.
This is because couples that choose to cohabit rather than marry or enter a civil partnership have:
• No automatic rights to their partner’s property on their death;
• No automatic right to inherit their partner’s estate where there is no Will in place, despite having children together; and
• No tax reliefs or exemptions which spouses and civil partners are entitled to.
What is the law in England & Wales?
If you or your partner pass away without a Will, there are few laws in England Wales which offer protection for the survivor. These are restricted to:
• Schedule 1 of the Children Act 1989 – This provides financial provision for any children of cohabitants, who are under the age of 18.
• Provision for Family and Dependants Act 1975 – Under this act, the surviving cohabitee may be able to make a claim if they can prove that they were financially dependent on their partner. However, making a claim can be extremely costly and time consuming, and ultimately it is down to the court’s discretion as to whether the survivor can claim anything from the estate.
• Where cohabitee’s jointly own property at the Land Registry, each partner is entitled to their own share. However, if one partner wishes not to sell the property, a court order may need to be obtained in order to sell the property.
• Cohabitee’s may be able to make a claim against their deceased partner’s estate if they can prove that they have significantly contributed towards the home in terms of mortgage payments or renovations.
The importance of creating a Will
By having a solicitor draw up a valid Will, you and your partner can legally outline your wishes in the event of your death. This will provide security for the surviving partner, and any children of the family.
A Will is of significant importance where cohabitee’s have stepchildren involved as the laws of intestacy only relate to biological or adopted children, so any stepchildren could lose out.
By creating a Will, you have the freedom to direct your assets in accordance with your wishes on your death. This may be ensuring that your property or money is passed on to your cohabiting partner in order that they have financial support once you have passed, or it may be to ensure that your stepchildren also benefit from your estate as well as your biological children.
From an inheritance tax perspective, cohabiting partners are not entitled to the spouse or civil partner exemption that married couples can enjoy. Therefore, a Will can be drafted to ensure that the survivor is financially stable without leaving assets to be taxed on each death.
It is essential to note that if you create a Will as an unmarried couple, your Wills will automatically be revoked if you decide to get married or enter into a civil partnership in the future, so a new Will would need to be drafted or drafted in contemplation of marriage or civil partnership.
In order to improve your legal position, you and your partner may decide to draw up a legal cohabitation agreement. This is a legal document which sets out arrangements for finances, property, utilities, and child maintenance during the relationship, after a relationship, or where one partner passes away.
A cohabitation agreement can be useful, alongside a Will, to protect cohabitees and their families. For example, an agreement can ensure that each partner has a share of each other’s assets, access to each other’s pension, and next of kin rights.
The future of cohabiting couples
The Cohabitation Rights Bill in the UK is a step closer towards becoming law and if passed, it will give cohabiting couples greater legal rights, including if one of them passes away. The Bill will define ‘living together as a couple’ as:
• They are members of the same household
• They are in a stable relationship
• There is financial support
• There is a sexual relationship
• There is public acknowledgement of that relationship
• Whether or not the parties have children
How can we help?
Here at Avery Walters, our Private Client specialists offer free initial, no obligation meetings to discuss your wishes and advise you upon the best options to protect your assets and loved ones when you pass.
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