Millions of couples who have chosen to avoid tying the knot are at risk of falling into complex legal battles to get a share of a home they've lived in all their lives or the wealth they've helped build. The numbers of cohabiting couples in the UK has risen to five million, according to the latest figures from the Office for National Statistics (ONS). But, contrary to popular belief, unmarried couples do not have automatic legal rights to inherit from each other.
'Common-law marriage' - where you live together without making it official - is a widely held misconception that will not protect the deceased's partner. The only way to ensure a partner doesn't lose out when the other dies, if not married or in a civil partnership, is to write a will. Implementing a Will can ensure that a partner benefits from the estate, whether that be property, savings or caring for a Pet.
Nothing is guaranteed
If there is no Will, then a client has no way of ensuring their partner gets anything when they die if they are unmarried. No matter how long a couple have been together, lived together or even had children together, if the couple are not married or in a civil partnership, the partner has no automatic legal rights to inherit when the other passes away.
If a client is looking to protect their partner, it’s vital you have a conversation with them about making a Will.
What happens without a will
When someone dies without a will, the rules of intestacy kick in and this means there is the possibility that the surviving partner can lose their home and a possible source of income and won't have any legal say over who gets what and when.
The rules of intestacy are a set of rules which establish who is entitled to inherit if there is no Will.
The order of beneficiaries is:
- Spouse or civil partner
- Children or grandchildren
- Parents
- Brothers and sisters (followed by half brothers and sisters)
- Grandparents
- Aunts and uncles (followed by nieces and nephews)
Married couples have an automatic right to the first £270k of their spouse’s estate (where there are children) however partners, cohabitees, boyfriends and girlfriends do not appear on this list. Therefore the only way a surviving partner can request financial provision from their partner’s estate (when there is no Will) is by making a claim under the Inheritance (Provision for Family and Dependants) Act 1975. The couple must have been living together for a period of two years before death in order to make a claim against the Estate.
With no will in place, the surviving partner may face a huge struggle to prove they should get property and maintenance, not to mention the wider strife and inter-family division that can ensue.
In some cases where there has been no will, bereaved partners have been forced to bring a financial claim against their own children and other members of the family.
What cohabitees should include in wills
What a person needs to put in their will if they’re living with a partner will depend on the circumstances, particularly if children are involved.
It's important the will includes:
- Who inherits the estate - don't leave this to the law to dictate.
- Who will be involved - a partner must be given the right to be involved in the estate if the testator passes away.
- Wishes about property - the will should be clear if it is desired for the partner to continue to live in the property after the testator dies.
- Wishes about money – the testator should set out exactly who their money goes to, ensuring the partner has enough to live on.
- Wishes about possessions – clear instructions should include on who will get particular possessions, such as a car or piece of jewellery.
- Where there are children involved, matters can become more complicated. It's vital to include instruction on the age that children can inherit.
When children are involved
There can be further issues if children are involved as they have a “greater right” to inherit their parent’s estate than a partner who may also be the mother/father of the children. This would mean that in order for the partner to claim financial provision, they would have to make a claim against the estate which would reduce the amount of inheritance given to their own children.
Moreover, cohabitees do not have an automatic entitlement to claim a share of their partner’s occupational pension on death (unlike married couples). The partner will need to be nominated as a beneficiary under the pension scheme.
What Are Unmarried Couples Property Rights in the UK?
There is the possibility for unmarried couples to make a claim against their partner’s estate if they have been living together for more than two years. However, as an unmarried couple, a partner is not automatically entitled to any of deceased’s estate, i.e. property, financial assets, possessions etc unless they are jointly owned.
By simply making a Will it can be ensured that a partner is protected and provided for in the future.